March 27, 2020 City Council Ordinance

On March 27, 2020, Los Angeles City Council passed an ordinance providing for supplemental paid sick leave to employees who perform work within the geographic boundaries of the City of Los Angeles. This ordinance applied to employers with 500 or more employees nationally. Full-time employees or those who work at least 40 hours per week are entitled to 80 hours based on their average two-week pay over the period from February 3 to March 4, 2020. Part-time employees are also eligible for an amount no greater than the employees’ average two-week pay over the same period. However, the amount of paid leave is capped at $511 per day and $5,110 in the aggregate.

An employee is entitled to the paid supplemental sick leave if:

• The employee takes time off because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
• The employee takes time off work because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
• The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
• The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health official or other public official’s recommendation.

An employer cannot require a doctor’s note or other documentation from the employee wanting to take the paid leave.

An employer does not need to provide any additional paid leave if an employer already provided employees with paid leave between March 4, 2020 and the present that was not already accrued. The supplemental paid leave under this ordinance expires on December 31, 2020.

April 7, 2020 Mayor Public Order

Los Angeles Mayor Eric Garcetti passed a Public Order on April 7, 2020, amending the definition of employer under the City’s ordinance to include employers with either 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States.

The Public Order also clarifies that an eligible employee must be unable to work or telework because of the listed qualifying reasons. Furthermore, if an employee takes leave to care for a child or senior family member, the employee must also be unable to secure a reasonable alternative caregiver.

Mayor Garcetti’s Order also adds exemptions to the supplemental paid leave for closed businesses and those employers who already provide “generous” paid leave. To qualify for the closed business exemption, the business must have been closed or not operating for a period of 14 days or more due to a city official’s emergency order related to COVID-19. Additionally, if an employer has a paid time off policy that provides for a minimum of 160 hours of paid leave annually, the employer is exempt from having to provide any supplemental leave to employees that receive 160 hours annually under the “generous leave” exemption.

April 11, 2020 Rules and Regulations

The City subsequently published Rules and Regulations regarding the Public Order on Supplemental Paid Sick Leave on April 11, 2020, clarifying that the definition of eligible employee is any employee who performs any work within City boundaries. This applies regardless of whether the employee’s regular workplace is outside of the City.

The rules also explain that for purposes of determining whether an employer is covered under the employee threshold, the number of employees is determined from the previous calendar year and includes full-time, part-time, temporary or seasonal employees, and workers from a temporary employment agency. Furthermore, a worker that worked in multiple locations will be counted as an employee if they performed any work within the City’s geographic boundaries in the previous calendar year. The rules provide two examples to illustrate:

• A company has one location inside the City of Los Angeles and one location outside the City boundaries. In the previous calendar year, the company averaged 234 employees. The paid leave would not apply to this employer or its employees.
• An employer has 3000 employees nationwide and one location in the City with 20 employees. The 20 employees at the location within the City would be eligible for paid leave.

When calculating an employee’s rate of pay for the paid leave, overtime premiums are not considered. However, the base rate before the premium for any overtime hours is included. Additionally, the total number of hours for a part-time employee should be determined by adding the number of hours worked in four consecutive weeks from the period of February 3 to March 4, 2020, and dividing that total by 2.

The rules add further detail to the exemptions. For an employer to qualify for the closed business exemption, the business must be closed or not operating for 14 or more consecutive days any time on or after March 4, 2020. Additionally, with regard to the generous leave exemption, paid holidays and paid bereavement leave do not count toward the 160-hour minimum.

As the ordinance and Public Order also state, an employer cannot require documentation of the reasons an employee needs to take the leave. Likewise, an employer also cannot require an employee to give a description of the illness or condition related to the employee’s need for leave. However, an employer may require an employee to give the reason for taking leave (e.g., child care, quarantine, caring for a family member, or vulnerable medical condition) for record-keeping purposes.

The rules also state that employees may also choose to use the leave periodically and need not use it consecutively. Under the Rules and Regulations, the order is now in effect until two calendar weeks after the local state of emergency for COVID-19 is lifted.

Lastly, the rules note that the employer should retain documents showing the paid leave provided to employees and the requests for supplemental paid sick leave. These records should include the employee’s name, date, the reason for leave, and whether or not the leave was approved (and if not, the reason for denial).

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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.