April 9, 2020

Los Angeles Alters COVID-19 Paid Sick Leave Ordinance

**UPDATE** These rules have been amended. See this post for latest updates.

One of the most complicated factors for California employers dealing with the COVID-19 pandemic has been the patchwork quilt of lengthy, confusing, and sometimes contradictory laws dealing with paid sick leave.

As we reported previously, on March 27, 2020, the City of Los Angeles put into place an emergency ordinance requiring employers of 500 or more to provide supplemental COVID-19-related paid sick leave for employees. Adding to the confusion, Los Angeles Mayor Eric Garcetti did not sign that ordinance into law, instead issuing an emergency order on April 7 which altered several key components of the city ordinance.

In addition, the cities of San Jose and San Francisco are expected to follow suit very shortly by issuing their own paid sick leave ordinances. We will report on those ordinances once they are issued.

Here are the critical changes between Mayor Garcetti’s Order, which is now law, and the original City Council Ordinance:

Fewer Employers Covered. One of the most significant changes is the scope of coverage. Where the original ordinance applied to employers of 500 or more employees, the emergency order applies to employers with 500 or more employees in the City of Los Angeles or 2,000 employees nationwide.

Changed Definitions. The emergency order:

  • Removes the presumption that a worker is an employee, and instead defines “employee” as: “an individual who performs any work within the geographic boundaries of the City for an Employer.”
  • Drops several definitions included in the original ordinance, including the definitions of “supplemental paid leave,” “city,” and “person.”
  • Changes the definition of “first responder” for purposes of exemption to “emergency personnel or health care worker.”

More Employees Exempted. The last critical change in Mayor Garcetti’s order is the significant increase in employees who may be exempted from its coverage. In addition to altering the types of health care professionals who are exempted, the emergency order also creates exemptions for parcel delivery services, new businesses who relocated to Los Angeles after September 4, 2019 (except construction businesses or film producers), and the government.

The emergency order also provides two new exemptions for businesses:

  1. for employers with generous leave plans (who offer 160 or more hours of paid leave annually), and
  2. for employers that have been closed or provided employees with paid leave for 14 days or more.

CBA Exemption Altered Significantly. The original ordinance provided that employees covered by a collective bargaining agreement (CBA) were exempt if the CBA contained an explicit and unambiguous waiver, but did not otherwise explain what was required to qualify for the exemption.

The emergency order clarified that, to be exempt, the CBA in effect at the date of the order needed to expressly contain “COVID-19 related sick leave provisions.” Where the employer has a CBA without explicit language, they must comply with the emergency order until the agreement is amended to “expressly waive” these rights “in clear and unambiguous terms.”

Expanded Employee Eligibility. The emergency order also clarifies that it applies to employees who were unable to work or telework for a covered reason. The order also expands the reasons for which an employee can take leave – and an employer may claim a leave offset – to include situations where the employee is ill with COVID-19.

Finally, the order clarifies that caregiving time is only available where the employee is “unable to secure a reasonable alternative caregiver.”

Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Stefanie Renaud, (310) 255-1818, srenaud@hkemploymentlaw.com, or Dan Handman,(310) 255-1820 or dhandman@hkemploymentlaw.com. Both are in the Los Angeles office of Hirschfeld Kraemer.