Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 28, 2020, the Los Angeles County Board of Supervisors voted unanimously to enact an interim urgency ordinance to require employers with 500 or more employees within the United States to provide supplemental paid sick leave (SPSL) to covered employees immediately until December 31, 2020 (unless the Board extends its applicability). This development represents the fourth local emergency paid leave ordinance in California (and possibly not the last), including one in the City of Los Angeles, in addition to a statewide mandate effectuated by California Governor Newsom's Executive Order N-51-20 for covered food sector workers.
Covered Employers & Employees: As noted, the ordinance applies to private employers with 500 or more employees in the United States, i.e., those not covered by the federal Families First Coronavirus Response Act (FFCRA). The ordinance is silent concerning when and how an employer calculates its size. The ordinance covers individuals employed by an employer on April 28, 2020, who perform any work in the unincorporated areas of the county. Like the other local emergency paid leave ordinances, the Los Angeles County law contains a presumption of employment that employers must rebut concerning independent contractors with which they do business.
Importantly, the ordinance does not apply to a food sector worker covered by California Governor's Executive Order N-51-20. Additionally, an employer may exclude employees who are emergency responders or health care providers, i.e.:
- Emergency Responder: An employee who provides emergency response services. This category includes, but is not limited to: 1) peace officers; 2) firefighters; 3) paramedics; 4) emergency medical technicians; 5) public safety dispatchers or safety telecommunicators; 6) emergency response communication employees; 7) rescue service personnel; and 8) employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor (presumably this means the DOL regulations implementing the federal FFCRA).
- Health Care Provider: The category of health care providers includes, but is not limited to: 1) medical professionals; 2) employees who are needed to keep hospitals and similar health care facilities well supplied and operational; 3) employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency; and 4) employees included in the definition of health care provider in the regulations issued by the U.S. Department of Labor.
Although during the Board meeting one of the sponsors of the ordinance suggested the ordinance contained an exemption for unionized workforces, there is the potential for exclusion, rather than wholesale exemption. The ordinance provides that parties to a collective bargaining agreement (CBA) can expressly waive any or all of the law's requirements if the waiver is explicitly set forth in the CBA in clear and unambiguous terms, but unilateral implementation of terms and conditions of employment by either party cannot occur.
Amount of Leave: Although the Board adopted the ordinance on April 28, 2020, the ordinance says an employer's obligation to begin providing SPSL begins on March 31, 2020. However, the ordinance's offset provision says that employers that provided additional paid leave for COVID-19 related purposes, above and beyond an employee's regular or previously accrued leaves (e.g., sick or personal leaves), can reduce their SPSL obligation by each hour so provided on or after March 31, 2020, for any of the reasons the law requires. This might suggest that, notwithstanding the March 31 reference, the Board's true intent is to impose a prospective, not retroactive, paid leave obligation. It is unclear whether and how this clarification will occur, given the Board does not assign a county agency to implement and/or enforce the law as it has done previously (e.g., the Department of Consumer and Business Affairs enforces the minimum wage ordinance).
Under the ordinance, employees who work at least 40 hours per week or are classified as full-time, receive 80 hours, which employers calculate using an employee's highest average two-week pay over the period of January 1 through April 28, 2020. Employees who work fewer than 40 hours per week and are not classified as full-time receive an amount no greater than their average two-week pay over the period of January 1 through April 28, 2020. If two or more employers jointly employ an employee, the employee receives an amount of leave specified for employees of one employer.
The ordinance provides that SPSL is in addition to any paid sick leave an employee receives under California's existing statewide (non-COVID-19) paid sick leave law, the Healthy Workplace Healthy Family Act of 2014. Additionally, the ordinance provides that employers cannot require employees to use other paid or unpaid leave, paid time off, or vacation time an employer provides them before using, or in lieu of using, SPSL.
Covered Uses & Using Leave: Under the ordinance, employees can use SPSL if they cannot work or telework 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 is subject to a federal, state, or local quarantine or isolation order related to COVID-19. Notably, the county appears to broadly interpret this provision as it provides the example of an employee who 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 needs to care for a family member (i.e., an employee's child, parent, or spouse) who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
- 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 child care provider ceases operations in response to a public health or other public official's recommendation.
Employers must provide SPSL upon an employee's request in writing, which includes, but is not limited to, an email or text message. Where the county ordinance differs from other local emergency paid leave laws is that it explicitly allows employers to require a doctor's note or other documentation to support an employee's need to use SPSL.
Rate of Pay: The ordinance does not contain a standalone pay rate calculation provision. Rather, it appears to require that employers pay SPSL at an employee's "average" rate of pay, based on the potential relief available to an employee for an employer’s violation of the ordinance. However, the law does not tell employers how to determine the average. While it might be logical to use the same timeframe employers use to calculate the amount of leave, strictly following that standard for the pay rate of leave will produce inequities because full-time employees get the highest average two-week pay, whereas non-full-time employees get the average two-week pay, over the period of January 1 through April 28, 2020. What the ordinance does directly address is the daily and overall amounts, which cannot exceed $511 and $5,110, respectively.
Prohibitions & Remedies: Employers cannot discharge, reduce in compensation, or otherwise discriminate against any employee for: 1) opposing any practice the law proscribes; 2) requesting to use or actually using SPSL; 3) participating in proceedings related to the law; 4) seeking to enforce rights under the law by any lawful means; and/or 5) otherwise asserting rights under the law. Additionally, employees cannot waive their rights under the ordinance. An employee's sole recourse for a violation is to file a civil lawsuit in state court, where, if the employee prevails, a court can order reinstatement, award back pay and SPSL unlawfully withheld, order other appropriate legal or equitable relief, and award reasonable attorneys' fees and costs.
Next Steps: The ordinance takes effect immediately, affecting employers with operations, or employees working, in unincorporated Los Angeles County. For many employers, the first step will be determining whether locations at which employees work are in an unincorporated or incorporated area. If an employer determines the ordinance applies, it should review relevant policies, practices, and procedures to determine whether and how they interact with the new law.
For employers subject to one or more emergency paid leave laws in California, or throughout the country, the task will feel more challenging. During COVID-19, the compliance challenges employers face are daunting and ever-increasing; with each new and (at least slightly different) legal requirement—many of which, like the Los Angeles County ordinance, provide no time to prepare—many employers may feel like they are playing a perpetual slow-motion game of whack-a-mole.