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 May 18, 2021, the Los Angeles County Board of Supervisors enacted an urgency ordinance that, under certain circumstances, requires all private employers to provide paid leave so employees can receive COVID-19 vaccine injections. This paid leave includes time employees spend traveling to and from appointments and time spent recovering from symptoms related to receiving the vaccine that prevent them from working or teleworking. The ordinance takes effect immediately – but is retroactive to January 1, 2021 – and will remain in effect until August 31, 2021.
Generally, the ordinance applies to all employees performing any work in the county’s unincorporated areas. Although, generally, employees cannot waive their rights under the ordinance, parties to a collective bargaining agreement (CBA) can jointly waive the law’s requirements via an explicit, clear, and unambiguous waiver in the CBA.
COVID-19 vaccine leave (CVL) is in addition to any job-protected paid leave employees receive under California’s paid sick leave (PSL) law, the Healthy Workplace Healthy Family Act, and – importantly – is available only if employees exhaust all available California supplemental paid sick leave (SPSL) – paid leave employees of employers with 26 or more employees receive and can use for specific COVID-related reasons, including, e.g., obtaining or recovering from symptoms related to vaccine injections.
The amount of CVL employers must potentially provide depends on whether an employee is full- or part-time. Employees are full-time if their employer considers them so or they worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date they take CVL. Any employee who is not full-time is considered part-time. Full-time employees who have exhausted California SPSL can use up to four hours of CVL per injection, whereas part-time employees can use a proportionate amount, based on their normally scheduled work hours over the two-week period preceding the injection, e.g., the ordinance provides that 20-hour-per-week employees can use two hours of CVL per injection.
The ordinance allows employers to request that employees provide written verification that they received a COVID-19 vaccine. When employees use CVL, employers must pay them their “normal rate of pay,” which they calculate using the employee’s highest average two-week pay over the period of January 1 through May 18, 2021.
The ordinance requires employers to conspicuously display a written notice that the Los Angeles County Department of Consumer and Business Affairs (LACDCBA) will create (so monitor its website). Additionally, for four years, employers must keep records demonstrating their compliance, which includes, for each employee, payroll records documenting the employee’s name, address, occupation, dates of employment, pay rate(s), and amount paid. Failure to keep, or provide LACDCBA access to, such records creates a presumption that the employer did not comply with the ordinance.
Employers cannot refuse to employ, terminate, reduce in compensation, or take adverse action against individuals who in good faith exercise rights provided under the ordinance. Within three year of an alleged violation, individuals who believe an employer violated the law can either file a complaint with LACDCBA, which will investigate and enforce the ordinance, or a lawsuit in state court; if they prevail, these individuals can receive reinstatement, interest on damages, back pay, penalties and fines – tripled for unlawful retaliation – and other appropriate legal or equitable relief, along with reasonable attorneys’ fees and costs.
Los Angeles County is the third jurisdiction to enact a standalone COVID-19 vaccine paid leave law, following New York State and Chicago, Illinois. Additionally, requirements to provide paid leave for time spent obtaining, or connected to receiving, COVID-19 vaccines expressly exist under COVID-19 “emergency” paid leave laws – e.g., (voluntary) federal FFCRA, California, and Philadelphia, Pennsylvania – or an agency interprets such a law to require paid leave for such purposes, e.g., in Colorado, just like numerous pre-COVID-19 paid sick leave laws. Although recent events suggest there might finally be light at the end of the COVID-19 tunnel, as the Los Angeles County ordinance demonstrates, until COVID-19 is officially in the rearview mirror, employers across the county must buckle up, keep their eyes on the road, and continue to navigate an, at times, bumpy highway of laws, health orders, and guidelines before they can safely park their COVID-19 paid leave policies, practices, and procedures.