SUPPLEMENTAL PAID SICK LEAVE
As discussed in a previous Advisory, on March 27, 2020, the Los Angeles City Council unanimously passed an ordinance that added a new Article 5-72HH to the Los Angeles Municipal Code (“Ordinance”) mandating COVID-19 Supplemental Paid Sick Leave. Los Angeles Mayor Eric Garcetti had until April 7, 2020, to act on this Ordinance. At the last moment, at 9:15 PM on April 7, Mayor Garcetti signed a Public Order Under City of Los Angeles Emergency Authority (“Emergency Order”).
The Emergency Order “applaud[ed]” the City Council for “thinking boldly and acting quickly to pass supplemental paid sick leave,” but also noted “that workers could suffer through layoffs if this City imposes excessive burdens and costs upon businesses.” The mayor further stated that he believed the Emergency Order would strike a necessary balance, and that he hoped the City Council would consider amending its Ordinance.
Effective immediately, the mayor suspended, during “the emergency period,” Article 5-72HH and replaced and superseded it with the his own provisions in his Emergency Order as detailed below. The City Council’s Ordinance was finally published on April 8, 2020, and was set to take effect on April 10, 2020, but is now replaced and superseded by the Emergency Order. Nonetheless, the Emergency Order closely tracks the City Council’s Supplemental Paid Sick Leave Ordinance. The major changes between the two are noted here.
Applicable Employers Refined/Limited
One of the most significant changes in the Emergency Order is the definition of “employer.” While the City Council’s Ordinance applies to employers with “500 or more employees nationally,” the Emergency Order applies to employers that have either “(i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.” (Emphasis added.)
The definition of “employee” under the Emergency Order closely tracks the language in the City Council’s Ordinance; however, the Emergency Order makes the additional clarification that an employee is entitled to supplemental paid sick “if an Employee is unable to work or telework.” Notably, the Emergency Order does not include the language that a worker is presumed to be an employee rather than an independent contractor.
Situations in Which the Employer Must Provide an Employee Supplemental Sick Pay Leave
Mayor Garcetti’s Emergency Order kept the same four situations in which an employer must provide supplemental paid sick leave, with two changes.
The Emergency Order adds language to the first situation, allowing for employees to take time off when they have a COVID-19 infection (additions in bold):
- 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.
Additionally, the Emergency Order added restricting language to the fourth situation, limiting the situation to only when an employee cannot secure a reasonable alternative caregiver (additions in bold):
- 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.
The most significant change between the Emergency Order and the City Council’s Ordinance is in regard to exemptions. The City Council’s Ordinance provides exemptions only for an employee who is either a “First Responder” or “Health Care Provider,” as defined by the Ordinance. The Emergency Order greatly expanded the list of exemptions. The refined/added exemptions in the Emergency Order include Emergency and Health Services Personnel, Critical Parcel Delivery, Employer’s with Generous Leave Policies, New Business Exemption, Government, and Closed Businesses and Organizations.
The Generous Leave exemption helps mitigate any extra burden being placed on businesses that already provide a generous leave provision. This exemption states, “If an Employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually” then the employer is exempt from providing supplemental paid sick leave pursuant to the Emergency Order for employees who received the more generous paid leave. This definition leaves out details on whether employers can combine various forms of leave or whether the 160 hours have to available for sick leave-related purposes (which many vacation policies in California do not permit). Presumably, the Office of Wages Standards will soon provide additional clarification on these issues when it issues Rules and Regulations.
The Closed Businesses and Organizations exemption will greatly relieve the burden placed on businesses that were forced to close due to the COVID-19 pandemic. This exemption applies to “[a]ny 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.”
While the Emergency Order did very little to clarify the ambiguous and confusing language in the City Council’s Ordinance regarding “Employer Offset,” the Emergency Order does add that in certain circumstances, which are not well defined, an employer may offset hours that an employer allowed an employee to take as paid leave “in response to an Employee’s inability to work due to COVID-19.” Hopefully, further guidance will be forthcoming regarding this employer offset.
Collective Bargaining Agreements
The Emergency Order also offers further clarification on the exemption for collective bargaining agreements (“CBAs”). The Emergency Order states that if a CBA is in place at the time of this Emergency Order but does not contain language addressing COVID-19 related sick leave provisions, then the employer must comply with this Emergency Order unless and until the CBA is amended with a waiver expressed in clear and unambiguous terms.
Enforcement – Employee Private Right of Action
Like the Ordinance, the Emergency Order provides employees a private right of action that can be brought in a California Superior Court to pursue claims for reinstatement, back pay, unpaid Supplement Paid Sick Leave and attorneys’ fees.
The Emergency Order took effect immediately upon its issuance on April 7, 2020.
Expiration of Order
The Emergency Order will “be in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.”
This is very important for businesses to keep in mind as the City Council’s Ordinance is “in effect until December 31, 2020.” Accordingly, as it stands, there is the possibility that the Emergency Order will end before the expiration of the City Council’s Ordinance. Thus, there could be a time period where the City Council’s Ordinance is in effect. Although the mayor recommended that the City Council amend its Ordinance, at this point in time, it is unknown if and how the City Council will amend its Ordinance.
Importantly, the Emergency Order states that the Office of Wage Standards of the Bureau of Contract Administration will “promulgate Rule and Regulations consistent with” the Emergency Order. Accordingly, there should be more guidance forthcoming to help employers navigate through these unprecedented times.
We also note that, like many other unilateral executive actions taken in response to COVID-19, the Emergency Order may be of questionable legal authority. Of course, because the mayor did not veto the Ordinance but signed it and then suspended and superseded it, presumably if the Emergency Order were challenged and invalidated, the original, less clear, Ordinance requirements would remain. It is potentially for these reasons the mayor noted he would be working with the City Council for a replacement, conforming ordinance.
ADDITIONAL REQUIREMENTS FOR NON-MEDICAL ESSENTIAL BUSINESSES
On April 7, 2020, the mayor also passed an additional Public Order under the City of Los Angeles Emergency Authority (“Mayor’s Public Order”). The Mayor’s Public Order seeks to further protect “non-medical essential workers” by requiring them to wear non-medical grade face coverings while performing work and imposing related mandates on their employers or contracting businesses.
The Mayor’s Public Order applies to a variety of workers who work at businesses or perform services that are exempt under the City of Los Angeles Safer at Home Emergency Order, which was issued on March 19, 2020, and revised on April 1, 2020. However, the Mayor’s Public Order specifically lists out which workers the Public Order applies to, as not all of the exemptions listed in the Safer at Home Emergency Order are included. The list, included as Paragraph 1 of the Mayor’s Public Order, contains a broad range of businesses all the way from grocery stores to dry cleaners to taxis and rideshare companies.
The Mayor’s Public Order goes into effect Friday, April 10, 2020.
Face Covering Requirement
Under the Mayor’s Public Order, the applicable workers must wear face coverings over their noses and mouths while performing their work. These face coverings can be simple fabric coverings, such as scarves or bandanas. However, the Mayor’s Public Order also states that all employers applicable under this Public Order must provide, at the employers’ expense, non-medical grade face coverings for their employees.
The workers who are required to wear these face coverings must wash any reusable face coverings at least once a day. Single-use face coverings must be properly discarded into trash receptacles.
Additionally, any business owner or operator as described in the Mayor’s Public Order may sell face coverings and emergency supplies. However, the mayor cautioned that all sellers of emergency supplies must abide by all price gouging laws.
Additional Business Requirements
In addition to providing non-medical grade face coverings for their employees, the applicable businesses referred to in the Mayor’s Public Order must now take additional steps. The applicable businesses:
- must permit their employees to wash their hands at least every 30 minutes;
- must ensure that their employees have access to clean, sanitary restrooms, stocked with all necessary cleansing products, or sanitizing agents; and
- must implement social distance measures for customers, visitors, and employees that provides a six-foot buffer, to the extent possible, between individuals.
Requirements of Customers
Businesses and workers are not the only ones that will be required to make a change on April 10, 2020. The Mayor’s Public Order also requires all customers and visitors of the applicable businesses to wear face coverings over their noses and mouths. However, similar to the workers, at this time the face coverings can be fabric coverings, such as scarves or bandanas. Importantly, a business owner or operator addressed in the Mayor’s Public Order can refuse admission or service to any individual who fails to wear face coverings.
While there is not a requirement that businesses refuse service to patrons not wearing face coverings, given the Mayor’s Public Order, an employer’s failure to do so may prompt employee relations issues, complaints, or, theoretically, future employment actions. Employers should carefully consider these issues when balancing their options.
Lastly, the mayor encouraged the applicable businesses to install plexiglass in order to separate cashiers and customers at the point of sale. However, at this time, this is only an “encouragement” and not a requirement.
Failure to Comply
The mayor made it very clear in the Mayor’s Public Order that he expects all applicable businesses to comply with this order. In fact, failing to comply with the Mayor’s Public Order constitutes a misdemeanor subject to fines and imprisonment. Moreover, the mayor urged the Los Angeles Police Department and the City Attorney to enforce the Mayor’s Public Order.
Effective Date and Expiration
As noted, the Mayor’s Public Order takes effect at 12:01 AM on April 10, 2020, and continues until the end of the “local emergency period.” However, the Mayor’s Public Order also notes that it “may be extended prior to May 1, 2020.”
Additional Public Order
While not discussed directly in this Advisory, the mayor also signed another Public Order under City of Los Angeles Emergency Authority on April 7, 2020, regarding “Grocery, Drug Retail and Food Delivery Worker Protection.” That order amended parts of a City Council Ordinance that dealt directly with grocery retail stores, drug retail stores, and food delivery services, and those businesses’ ability to approve or deny an employee’s request to change a work schedule and the businesses’ right to hire a new employee. Employers in those industries should review this order and consult with counsel regarding their evolving obligations.
What Los Angeles Employers Should Do Now
- Businesses operating in Los Angeles should closely evaluate the Supplemental Paid Sick Leave Ordinance and the Emergency Order, together with their current paid leave policies, to ensure compliance.
- Essential business employers must provide or reimburse Los Angeles employees for face coverings and also ensure that they are being worn at all times while performing work.
- Essential business employers should also ensure they are providing appropriate sanitation breaks as well as a sanitary and socially distanced work environment.
For more information about this Advisory, please contact:
|Adam C. Abrahms|