Los Angeles Mayor Garcetti Issues Emergency COVID-19 Paid Sick Leave Order

On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an emergency public order requiring businesses with 500 or more employees who perform any work in the City of Los Angeles or 2,000 or more employees within the United States to provide up to 80 hours of supplemental paid sick leave due to COVID-19. The order is effective immediately, and remains in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

The emergency order replaces and supersedes Los Angeles City Council Article 5-72HH providing supplemental COVID-19 paid sick leave, which was passed on March 27, 2020. The order tracks most of the provisions of the ordinance, although the order is expanded in scope to apply to employers of 2,000 or more within the United States, instead of just 500 or more within the City of Los Angeles. The order also adds several exemptions discussed below. Please see our March 30, 2020 alert for a summary of the City Council ordinance.

Full and Part-Time Employees Covered. The basic coverage provisions of the order are the same as in the ordinance. To be eligible for paid sick leave, employees must have been employed during the period from February 3, 2020, to March 4, 2020, as follows:

1. Full-time employees (those who work more than 40 hours per week) receive 80 hours of paid sick leave calculated based on the employee’s average two week pay from February 3, 2020, to March 4, 2020.
2. Part-time employees (those who work fewer than 40 hours per week) receive paid sick leave no greater than the employee’s average two week pay from February 3, 2020, to March 4, 2020.

Paid sick leave is limited to $511 per day, and is not to exceed $5,100 total.

Four Covered Reasons for Leave. The four covered reasons for leave are essentially the same as in the ordinance, except that an employee-caregiver must now be “unable to secure a reasonable alternative caregiver.” An employer must provide paid sick leave upon the oral or written request of an employee if the employee takes time off because of the following reasons:

1. Due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
2. 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;
3. 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; or
4. The employee needs to provide care for a family member whose senior care provider or whose school or child care provider temporarily ceases operations in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

An employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave.

Exemptions and Offsets. The list of exemptions has been expanded significantly. The ordinance exempted only first responders and health care workers. The order exempts the following six catgegories:

1. Emergency and health services personnel.
2. Critical parcel delivery employees.
3. Employers with a generous leave policy, defined as paid leave or paid time off that provides a minimum of 160 hours of paid leave annually.
4. New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020, except for certain construction businesses and film producers as defined in the order.
5. Employees of government agencies.
6. Closed businesses and organizations, defined as “any business or organization that was closed or not operating for a period of 14 or more days due to a city official's emergency order because of the COVID-19 pandemic or provided at least 14 days of leave.”

A collective bargaining agreement in place on the effective date of the order may supersede the provisions of the order if it contains COVID-19 related sick leave provisions. When the collective bargaining agreement expires or is otherwise open for renegotiation, the provisions of the order may only be expressly waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

The order still provides for an offset: An employer’s obligation to provide 80 hours of leave is reduced for every hour that an employer allowed an employee to take leave for a covered reason listed above on or after March 4, 2020.

Penalties for Noncompliance. The penalties for noncompliance are the same as in the ordinance. Employers may not retaliate against employees who request or take supplemental paid leave. An employee claiming a violation of the article may bring a lawsuit against the employer in California Superior Court and may be awarded (1) reinstatement, (2) back pay and supplemental paid sick leave, and (3) if the employee prevails, attorneys’ fees as part of recoverable costs.

The full text of the order can be read here.