Los Angeles emergency public order imposes new COVID-19-related paid sick leave obligations on larger employers

Employers with either 500 or more employees within the City of Los Angeles, or who employ at least one employee in Los Angeles and have 2,000 or more employees within the US, must now provide supplemental paid sick leave for reasons related to the coronavirus pandemic for those employees performing work in the city. Notably, while employers of this size are exempt from the recent federal paid sick leave law, they must immediately become familiar with this new obligation under an emergency order signed by the Mayor.

This new paid sick leave is described as “supplemental” because it builds upon, and is in addition to, the city’s paid sick leave law ordinance in effect since 2017. Under this new emergency order, employees who have been employed with the same employer from February 3, 2020 through March 4, 2020 are entitled to supplemental paid sick leave if they are unable to work or telework and need time off for one of these reasons:

1. The Employee takes time off 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 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.
3. 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.
4. 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 caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation. This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.

A full-time employee is eligible for 80 hours of supplemental paid sick leave. Part-time employees may receive no more than the average two week pay over the period of February 3, 2020 through March 4, 2020.

An employer may not require a written request for leave; an employee’s oral request is sufficient. Nor may an employer require a doctor’s note to support the request for supplemental paid sick leave.

The order contains an exemption for emergency services personnel, global parcel delivery services, employees of government agencies and certain new businesses. In addition, a business that closed for 14 or more days because of a COVID-19 shelter-in-place order or provided 14 or more days of leave during that period is exempt.

Similarities and contrasts with the FFCRA

The Los Angeles order appears to be intended to expand upon the recent Families First Coronavirus Response Act (FFCRA) enacted by Congress. The FFCRA, which also mandates paid sick leave related to the pandemic, applies only to employers with fewer than 500 employees (and contains a possible, partial exemption for employers with fewer than 50 employees). Yet, the qualifying reasons for leave overlap in both, and the cap on paid leave ($511 per day and $5,110 in the aggregate) under both the FFCRA and the Los Angeles order are identical for employees under self-quarantine (though the cap is more generous under the order for other qualifying reasons for leave).

In addition, unlike the FFCRA, the city’s order allows for paid sick leave for older employees (65 years and up) or those who have certain health conditions or a weakened immune system without requiring medical certification or any evidence that they are experiencing symptoms of COVID-19 or being advised to self-quarantine.

Some unanswered questions

The emergency order leaves some important issues open for debate or clarification from the city (in the form of forthcoming regulations), such as:

• The definition of “employer” includes an “officer or executive,” which raises the question as to whether there may be personal liability for failing to provide supplemental paid sick leave.
• What, if anything, may an employer require of an employee to demonstrate an inability to find someone to care for their child?

Finally, although it is not absolutely certain, it seems that a “shelter-in-place” order is a qualifying basis for leave under reason number 1 of the emergency order when an employee is unable to work or telework as a result. Nevertheless, it should be noted that the Mayor’s order expressly supersedes of the City Council’s Ordinance, passed in late March. An earlier draft of that Ordinance included this qualifying reason for supplemental paid sick leave: “The Employee is off work because the Employer’s business or work location temporarily ceases operations in response to a public official’s closure recommendation due to the COVID-19 public health pandemic.” The final version of the Ordinance, as well as the Mayor’s order, does not include this reason as a basis for supplemental paid sick leave. What significance can be drawn from this omission? We will provide an updated alert when the City of Los Angeles provides more guidance.