City of L.A. Mandates Supplemental Paid Sick Leave to Fill Gaps in FFCRA

By: Kyle D. Kring and Kerri N. Polizzi

On Tuesday, April 7, 2020, Los Angeles Mayor Eric Garcetti issued an emergency Public Order regarding Supplemental Paid Sick Leave Due to COVID-19 taking immediate effect and requiring covered employers (more than 500 employees within the City of Los Angeles or more than 2,000 in the U.S.) to provide eligible employees with paid sick leave benefits during the public health emergency surrounding the COVID-19 pandemic. The Order amends the Los Angeles Municipal Code in what appears to be an attempt to fill gaps in the coverage afforded by the federal Families First Coronavirus Response Act ("FFCRA"), which went into effect earlier this month.1

Reasons for Leave

Covered employers are required to provide Supplemental Paid Sick Leave ("SPSL") to eligible employees who provided oral or written notice that they are unable to work or telework for one of the following reasons related to the COVID-19 pandemic:

  1. The employee has a COVID infection or 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 a weakened immune system);
  3. The employee needs to care for a family member who is not sick but for whom public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
  4. The employee needs to care for a family member whose senior care provider or whose school or child care provider caring for a child under 18 temporarily ceases operations in response to a public health or other public official's recommendation. (Note, however, that this provision is onlyappliable to an employee who is unable to secure a reasonable alternative caregiver).

Employer's may not require a doctor's note or other documentation supporting the request for leave and may not retaliate against any employee for requesting or using SPSL.

Covered Employers

The Order's requirements, discussed in further detail below, apply to employers with:

  1. 500 or more employees within the City of L.A.2; or
  2. 2,000 or more employees within the U.S.

However, employees that meet one or more of the following criteria are exempt from the SPSL mandate:

  1. The business is a new business that either started in, or relocated to, the City after September 4, 2019. (Note, however, that this exemption is not applicable to construction businesses or film producers);
  2. The business was closed or not operating for at least 14 days due to a city official's emergency order regarding COVID-19 or provided at least 14 days of leave.

Eligible Employees

  1. To be eligible, employees must meet all of the following criteria:
  2. The employee has been employed by the same employer from February 3, 2020 to March 4, 2020;
  3. The employee performs any work within the geographic boundaries of the City of L.A.; and

The employee must not fall into any of the following exemptions:

  1. Emergency Personnel, as defined in paragraph 5(vi) of the City's Safer at Home Order;
  2. Health Care Workers, which includes those listed in Government Code section 12945.2(c)(6) and employees working at licensed health facilities;
  3. Critical Global Parcel Delivery Service Providers;
  4. Government Employees; or
  5. Generous Leave Recipients - any employee to whom the employer already provides at least 180 hours per year of paid time off.

Amount of Leave

The amount of leave to which an employee is entitled is determined as follows:

  • An employee is entitled to 80 hours of SPSL if the employee either:
    • Works at least 40 hours per week; or
    • Is classified as a full-time employee by the employer.
  • If the employee does not meet these criteria (i.e. works less than 40 hours per week and is not classified as a full-time employee by the employer), the employee is entitled to an amount of SPSL no greater than their average 2-week pay from the time period of February 3, 2020 to March 4, 2020.
  • The amount due to an employee may be reduced for every hour of paid leave already provided to that employee - not including previously accrued leave - for a qualifying reason on or after March 4, 2020.

Each employee's SPSL is capped at a maximum of $511 per and $5,110 total.

Enforcement

The Order creates a private right of action to bring a civil action against their employer for failure to provide required SPSL. In such an action, the employee may recover:

  1. Reinstatement, if the employee was discharged for requesting or using SPSL;
  2. Back pay and SPSL unlawfully withheld;
  3. Attorney's fees and costs; and
  4. Other legal or equitable relief the court may deem appropriate.

The Order states that additional regulations will be posted by the Office of Wage Standards at WagesLA.lacity.org. Once the regulations are posted, both employers and employees are authorized to rely upon them.

Kring & Chung, LLP is continuing to monitor and work with our clients to respond to federal, state, and local government responses to this evolving situation. Kyle D. Kring is a Managing Partner of Kring & Chung, LLP. He can be reached at (949) 261-7700 or kkring@kringandchung.com. Kerri N. Polizzi is an Associate of Kring & Chung, LLP. She can be reached at (949) 261-7700 or kpolizzi@kringandchung.com.

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