As employees are just beginning to return to work, or employers are making plans to reopen pursuant to California’s “Blueprint for a Safer Economy,” it is a good time to review the various paid sick leave laws that were implemented during the COVID-19 epidemic, as well as the paid sick leave laws that were already in place prior to COVID-19 under California and local laws.  Here is a review of five paid sick leave laws that could apply to employers in the Los Angeles and Southern California area:

1. Los Angeles City – COVID-19 Supplemental Paid Sick Leave

April 7, 2020, Mayor Garcetti signed the COVID-19 Supplemental Paid Sick Leave law.  The law is effective from April 7, 2020 and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

The final Order can be viewed here, and sets forth the following:

Covered employees:

An employee who has been employed with the same employer from February 3, 2020 through March 4, 2020, is entitled to supplemental paid sick leave.  The employee must perform any work within the geographic boundaries of the City for the employer.

Covered employers:

Applies to an employer that has either (i) 500 or more employees within the City of Los Angeles, or (ii) 2,000 or more employees within the United States.

Amount of Leave:

If an employee is unable to work or telework, they are entitled to leave as follows:

  1. An employee who works at least 40 hours per week or is classified as a full-time employee by the employer shall receive 80 hours of supplemental paid sick leave. Supplemental paid sick leave shall be calculated based on an employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
  2. An employee who works less than 40 hours per week and is not classified as a full-time employee by the employer shall receive supplemental paid sick leave in an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

Cap on payments:

The amount paid to an employee is limited to $511 per day and $5,110 in the aggregate.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Qualifying Reasons for Leave:

Supplemental paid sick leave upon the oral or written request of an Employee if:

  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; or
  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.

An Employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

Employer Offset:

This requirement will be reduced for every hour an employer provides paid leave to an employee (except for previously accrued hours) on or after March 4, 2020 for any reasons set forth above or in response to an employee’s inability to work due to COVID-19.

Businesses Exempt From the Supplemental Paid Sick Leave:

  1. Emergency and health services personnel.
  2. Critical parcel delivery employees.
  3. Employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
  4. New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020.
  5. Government employees.
  6. Closed businesses and organizations – Any 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 shall be exempt from the Order.
2. Los Angeles County COVID-19 Worker Protection Ordinance

On April 28, 2020, the Los Angeles County Board of Supervisors passed the Los Angeles County COVID-19 Worker Protection Ordinance.   Click here to view the Ordinance.

Effective Time Period:

March 31, 2020 to December 31, 2020 (unless it is extended by the Board of Supervisors)

Covered Employers:

Applies to employers operating in the unincorporated areas of the County of Los Angeles who have 500 or more employees nationally.

The ordinance applies to an individual who performed any work within the County for the employer.

Excluded Employees:

The Ordinance excludes food sector workers who are covered in California Governor’s Executive Order N-51-20 (see below).  Employers may also exclude emergency responders or health care providers (as defined by the Ordinance) from being eligible for paid sick leave.

Amount of Paid Sick Leave:

Employees who work at least forty hours per week or is classified as a full-time employee is entitled to 80 hours of supplemental paid sick leave.  The amount of pay is calculated on the employee’s highest average two week pay during the period of January 1, 2020 to April 28, 2020.

Employees who work less than 40 hours per week and is not classified as a full-time employee is entitled to paid sick leave calculated at the employee’s average two week pay over the period of January 1, 2020 to April 28, 2020.

The amount of paid sick leave is capped at $511 per day and $5,110 in the aggregate.  Paid sick leave under the Ordinance is in addition to any paid sick leave available to employees under Labor Code 246.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Covered Reasons For Leave:

Employers must provide paid sick leave to employees under the Ordinance at the written request (including, but not limited to, email and text) of an employee if the employee cannot work because:

  1. 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 subject to a federal, State, or local quarantine or isolation order related to COVID-19 (e.g., 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 needs to care for a family member who is subject to a federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  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 childcare provider ceases operations in response to a public health or other public official’s recommendation.

Employers may require a doctor’s note or other documentation confirming that the employee is entitled to sick leave under one of these qualifying reasons.

3. California Food Service Workers Supplemental Paid Sick Leave – Executive Order N-51-20

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which provides new paid sick leave to certain food service workers. Citing a need to fill a “gap” left by the federal Families First Coronavirus Response Act, which applies solely to employers with fewer than 500 employees, this  Executive Order provides up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to defined food sector workers.

Covered Employers:

Executive Order N-51-20 applies to employers with 500 or more employees in the United States, including full-time and part-time workers but not including independent contractors. Employees on leave of any kind are counted, but employees furloughed or laid off are not counted unless and until they are reemployed.

The Executive Order expressly applies to any “Delivery Network Company” (companies that use a website or mobile app to enable local delivery of products/food from third-party merchants; think Postmates or GrubHub) and any “Transportation Network Company” (companies that provide transportation services using online apps/platforms that connect passengers with drivers using a personal vehicle; think Uber or Lyft) that employs 500 or more employees.

As with the FFCRA and FMLA, common employees of joint or integrated employers must be counted together.

There is one exception: if, as of April 16, 2020, the employer already provides a “supplemental benefit” such as paid leave that provides the same or greater benefit provided by this Executive Order, then the employer does not have to provide the COVID-19 Supplemental Paid Sick Leave.

Employees Covered:

The Executive Order applies to “Food Sector Workers,” which it defines as any person who satisfies one of the following criteria:

  1. The person works in an industry or occupation covered by Wage Orders 3 (Canning, Freezing, and Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations).
  2. The person works for a food facility,” which means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, whether consumed on or off premises, as well as storage facilities for food-related utensils, equipment, and materials.
  3. The person delivers food from a food facility.

Food Service Workers only include those persons who are essential workers under the Governor’s stay-at-home order, or any other statewide stay-at-home order.  Employees who work from home do not qualify for the supplemental paid sick leave.

The Labor Commissioner’s Office, which enforces the Executive Order, has interpreted it to specifically encompass “grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.”

Covered Reasons For Leave:

The worker must be unable to work due to one of three reasons:

  1. The Food Service Worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The Food Sector Worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  3. The Food Sector Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Amount of Paid Sick Leave:

The worker is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave if either (1) the employer considers the worker to work “full-time”; or (2) the worker worked or was scheduled to work an average of at least 40 hours per week in the two weeks preceding the start of the leave.

If the worker does not meet either of the above “full-time” requirements, then the amount of leave depends on the worker’s schedule.  If the worker has a “normal weekly schedule,” the worker is entitled to leave equal to the total number of hours normally scheduled to work over two weeks.  If the worker has a “variable schedule,” the worker is entitled to fourteen times the average number of daily hours worked in the preceding six months.

The food service worker is paid at the regular rate of pay for the worker’s last pay period.  If the applicable state or local minimum wage is higher, then the worker gets that minimum wage.  Regardless, pay is capped at per worker at $511 per day and $5,110 in the aggregate.

The leave provided by the Executive Order is in addition to any paid sick leave available under Labor Code section 246 (see below for further details).

Effective Dates:

The Executive Order was signed on April 16, 2020.  The food service worker is entitled to leave upon oral or written request by the worker to the employer.  The worker, not the employer, may decide how many hours of leave to use, up to the total amount available.  The employer may not require the worker to use any other paid or unpaid leave, including vacation or other paid sick leave, prior to using the supplemental paid sick leave.

The Executive Order remains in effect during the pendency of any statewide stay-at-home order, but a worker taking leave at the time such an order expires is permitted to continue to take the full amount of leave.

Required Poster:

The Labor Commissioner published a poster that eligible employers must post related to this Executive Order.  For food service workers that do not frequent a workplace, the employer may email the poster to the worker.

Requirement To Wash Hands:

The Executive Order provides that food facilities must permit employees to wash their hands “every 30 minutes and additionally as needed.”

4. Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) was passed by the Senate and signed by President Trump on March 19, 2020.  The Act provides for two paid leaves that employers across the United States must provide to employees in response to the coronavirus epidemic.  The Act is effective in 15 days and applies to employers with 1 to 499 employees – yes, you read that right, large employers with 500 or more employees do not have to comply with this law.  It expires on December 31, 2020.  The Act provides for two sources of paid leave: Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act (EPSLA):

Covered Employees: All employees.

Covered Employers: Employers with fewer than 500 employees.

Amount of Leave:

  • Full time employees: 80 hours of paid leave
    • Calculated at their regular rate of pay (as calculated by the FLSA) or the minimum wage, whichever is greater.
  • Part-time employees: Average number of hours worked over a two-week period.
    • If employee works a variable schedule, it is the average number of hours they worked per day over the previous six months. If the employee has not worked this long, it is the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

The Emergency Paid Sick Leave Act sets forth six covered reasons qualifying for paid sick leave, and a corresponding rates of pay for the employee and a cap on payments to the employees depending on the reason for leave:

Covered Reason For Leave Rate of Pay Cap on Payments
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis. The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2). Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate

Employers cannot require employees to use any other leave prior to using the Emergency Paid Sick Leave.

Notice requirements: Employers must post a notice in conspicuous places on the premises of a notice to be prepared by the Secretary of Labor.  The Secretary of Labor has 7 days after the enactment of the Act to make the notice publicly available.

The Act cannot not diminish the rights or benefits of employees provided under any other Federal, State, or local law, collective bargaining agreement, or existing employer policy.

Employers are not required to pay out any unused Emergency Paid Sick Leave at the end of employment.

Emergency Family and Medical Leave Expansion Act:

Eligible employees: An employee who has been employed for at least 30 calendar days.

Covered employers: An employer with fewer than 500 employees.

Qualified reasons for paid FMLA leave: When the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (with respect to a COVID-19 declared by a Federal, State, or local authority), the employee may take up to 12 weeks of leave.

Amount of paid leave:

  • First 10 days may be unpaid (but employee may use other paid leaves during this time)
  • Paid at no less than two-thirds of the employee’s regular rate of pay (as determined by the FLSA) and the number of hours the employee would normally be scheduled to work for up to 12 weeks.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

Reinstatement rights:  Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.

Exclusions: The Secretary of Labor has authority to issue regulations for good cause to exclude certain health care providers and emergency responders, and to exempt small businesses with few than 50 employees if requirements would “jeopardize the viability of the business as a going concern.”

The Act provides payroll tax credits granted to employers to offset the costs associated with these employer provided mandates.  This is a concern for many business owners, especially restaurant owners, who have been forced to close or substantially reduce their operations to take-out only, and now must find extra money for these payments and wait for a tax credit.

Required Poster:

The Department of Labor published the required posters employers will need to provide to employees under the Families First Coronavirus Response Act:

5. Other Paid Sick Leave Requirements Already In Place Prior to COVID-19

California employers still must comply with California’s Healthy Workplaces, Healthy Families Act of 2014 and any other local city or county paid sick leave laws that have been in place prior to COVID-19.  All California employer must comply with the California’s Healthy Workplaces, Healthy Families Act of 2014.

Some other examples of other local city or county paid sick leave laws in Southern California include:

  1. Los Angeles City’s paid sick leave requirements
  2. Los Angeles County’s paid sick leave requirements
  3. Santa Monica
  4. San Diego

More information on these local paid sick leave laws for Southern California can be read here.