Yesterday, April 7, 2020, Mayor Garcetti signed the COVID-19 Supplemental Paid Sick Leave law.  The final law changed some of the provisions that were voted on and passed by City Council on March 27, 2020.  The law becomes effective immediately.  It 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 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.

 

On April 1, 2020, the DOL issued a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA).  The rules largely follow the previously published FAQ by the DOL, but the rules did set forth some additional clarifications on the documents required by employees asking for leave and the documentation that employers need to maintain under the FFCRA.  The rules were just issued today, and below is a summary of the documentation requirements that I’ve been receiving a lot of questions about.  As the attorneys at my firm and I review the full rules, we will provide updated posts, so please subscribe to the blog for timely updates.

In section 826.100 of the rules, the DOL explained that an employee is required to provide the employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:

  1. Employee’s name;
  2. Date(s) for which leave is requested;
  3. Qualifying reason for the leave; and
  4. Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

In order to take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.  This is the first qualifying reason for emergency Paid Sick Leave, which is if the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.  This reason is the second qualifying reason for emergency Paid Sick Leave, which is if the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19

To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

  1. the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or
  2. The name of the health care provider who advised the individual being cared for to self- quarantine due to concerns related to COVID-19.

This is the third qualifying reason for emergency Paid Sick Leave, which is if the employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide:

  1. the name of the Son or Daughter being cared for;
  2. the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and
  3. a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

This is the forth qualifying reason for emergency Paid Sick Leave, which is the employee is caring for an individual who is subject to an order as described in reason 1 above or has been advised as described in reason 2 above.

The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided- by-small-and-midsize-businesses-faqs. (Please note that as of April 1, 2020, at the time of publication of this article, this link is not active on the IRS’s website yet.)

Record Keeping

The DOL also explained that an employer is required to retain all documentation provided pursuant to § 826.100 for four years, regardless whether leave was granted or denied.  In addition, if an employee provides oral statements to support their time off under the Paid Sick Leave or Expanded Family and Medical Leave, the employer is required to document and maintain this information its records for four years.

Denial of Request for Paid Sick Leave or Expanded Family and Medical Leave

If an employer believes it qualifies for the small business exception under the law and denies an employee’s request for Paid Sick Leave or Expanded Family and Medical Leave pursuant to § 826.40(b) shall document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for four years.

Documents Recommended to Claim Tax Credits

In order to claim tax credits from the Internal Revenue Service (IRS), the DOL set forth that employers are advised to maintain the following records for four years:

  1. Documentation to show how the Employer determined the amount of paid sick leave and expanded family and medical leave paid to Employees that are eligible for the credit, including records of work, Telework and Paid Sick Leave and Expanded Family and Medical Leave;
  2. Documentation to show how the Employer determined the amount of qualified health plan expenses that the Employer allocated to wages;
  3. Copies of any completed IRS Forms 7200 that the Employer submitted to the IRS;
  4. Copies of the completed IRS Forms 941 that the Employer submitted to the IRS or, for Employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the Employer’s entitlement to the credit claimed on IRS Form 941, and
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax- credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs. (Please note that as of April 1, 2020, at the time of publication of this article, this link is not active on the IRS’s website yet.)

The Department of Labor added additional answers on March 28, 2020 to its website containing Frequently Asked Questions pertaining to the Families First Coronavirus Response Act (FFCRA).  The DOL set forth answers regarding who qualifies as a “health care provider” and an “emergency responder” under the FFCRA:

  1. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

  1. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

  1. Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

 

The DOL also provided answers to questions regarding the small business exemption of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act.  Importantly, the DOL provided that the small business exemption only applies to the expanded family and medical leave, and not to the Emergency Paid Sick Leave Act:

This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

    • employer employs fewer than 50 employees;
    • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
    • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

Companies that are closed or have furloughed employees because of lack of work are not required to provide paid sick leave or expanded family and medical leave under the FFCRA. 

On March 27, 2020, the DOL provided additional FAQs, and of importance the DOL provided an answer to many employers’ question of whether the employer must provide paid sick leave or expanded family and medical leave if the employer’s workplace is closed.  The DOL stated in question numbers 23 and 24 that employers are not required to pay for paid sick leave or expanded family and medical leave if it has closed its worksite.  In addition, the DOL explained that if the employer is open for business, but furloughs certain employees after April 1, 2020 (the effective date of the FFCRA) because of lack of work, this employee would not be entitled to paid sick leave or expanded family and medical leave. See question number 26.

Today, March 27, 2020, the Los Angeles City Council approved an ordinance that would require employers with 500 or more employees to provide 80 hours of paid sick leave.  The “Supplemental Paid Sick Leave” would be capped at $511 per day and $5,110 in the aggregate.

The ordinance, requires the following:

  • Applies to employers with 500 or more employees nationally
  • Employee is any individual who performs any work within the geographic boundaries of the City for an employer.
  • Employees who have worked for an employer from February 2, 2020 to March 4, 2020 would receive at least 80 hours of paid sick leave.
  • Reasons that an employee could use the paid sick leave include:
    • time off because a “public health official or health provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19”;
    • the employee takes time off because they are at least 65 years old or has a health condition that puts them at risk;
    • 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 self-quarantine;
    • the employee needs to provide care to family member whose senior care provider, school, or child care provider is closed.

The final ordinance did exempt first responders and health care providers as defined in Section 12945.2 of the California Government Code.  The ordinance expires on December 31, 2020 unless the City Council takes action to extend the ordinance.

The ordinance will now proceed to the Mayor’s office for his signature.

[Update: See our analysis regarding the Department of Labor’s temporary rule issued on April 1, 2020 setting forth regulations regarding employee and employer documentation here.]

By Rick Reyes

It is no easy task for employers to navigate and comply with the new federal requirements set forth in the Families First Coronavirus Response Act (FFCRA).  Specifically, employers now must provide greater rights for leaves of absence under the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion”) and the Emergency Paid Sick Leave Act (“EPSLA”).  In attempting to quickly address the potent impact that Coronavirus (“COVID-19”) has had on the country’s economy, Congress rapidly enacted the FFCRA.  The problem?  The FFCRA leaves many unanswered questions, and leaves employers guessing as to exactly how to comply and what the employers can and cannot do.  One major source of confusion is exactly what documents, if any, can an employer request prior to granting an employee with a leave of absence.  This article attempts to provide more guidance to employers on this issue.

When May An Employee Take a Leave of Absence Under the Emergency FMLA Expansion?

In short, an employee may take leave of absence 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.”  The term “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state or local authority.

The employee may take up to 12 weeks of paid leave.

When May An Employee Take a Leave of Absence Under the EPSLA?

The EPLSA provides for six (6) covered reasons under which an employee may take a leave of absence.  These include:

  • The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an order as described in No. 1 or has been advised as described in No. 2, above;
  • 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;”
  • 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.

Full time employees may take up to 80 hours of paid leave under the EPSLA.  The amount of leave for part-time employees is the average number of hours worked over a two-week period, unless the employee works a variable schedule, which requires a different calculation.

For a more detailed analysis of the requirements and entitlements under the Emergency FMLA Expansion and the EPSLA, see our previous blog post here.

What Documents Can Employers Require Prior To Authorizing Leave Under EPSLA? 

Prior to today, March 27, 2020, the answer to this question was unclear.  However, earlier this morning, the Department of Labor (“DOL”) has issued further guidance for employers on this specific issue.

The DOL states that if an employee is unable to work or telework due to a qualifying reason related to COVID-19, the employee must provide documentation in support of the reasons for the paid sick leave.  Such documents may include: a copy of the federal, state or local quarantine or isolation order related to COVID-19, or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

What Documents Can Employers Require Prior To Authorizing Leave Under the Emergency FMLA Expansion?

As briefly mentioned above, an employee may only take leave of absence under the Emergency FMLA Expansion to care for the employee’s son or daughter because of a school closure due to a public health emergency.

Thus, the DOL explains that an employee must provide documentation supporting the need for leave under the Emergency FMLA Expansion.  To meet this requirement, employees may provide their employers with a notice of closure or unavailability from the child’s school, place of care, or child care provider.  This “notice” can include a notice that may have been posted on a government, school or day care website, published in a newspaper, or emailed from either the employee him/herself or an official of the school, place of care, or child care provider.

Another question up in the air was whether the existing certification requirements under the FMLA would continue to stay in place.  The DOL’s guidance confirms that the employee must continue to satisfy the certification requirements under the FMLA if the employee is taking leave for one of the existing qualifying reasons under the FMLA.  Employees must continue to provide medical certifications for the qualifying reasons under the FMLA, if required by the employer.

Recommendations for Employers

While the DOL’s guidelines clarify that an employer can request documentation from an employee prior to taking leave of absence under both the Emergency FMLA Expansion and the EPSLA, there are some issues employer must be mindful of.

First, employers must remember that under EPSLA, there are multiple covered reasons under which an employee may take leave of absence.  Under some of those covered reasons, the required documentation will be easily provided.  For example, when the employee is taking leave to take care of his or her child.  In that scenario, the employee would only need to provide a notice that the school is closed, as discussed above.  However, if the employee requests leave of absence because the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (No. 2, discussed above), the documentation may not be as easily obtainable.  Given the current circumstances and access limitations, not all employees may be able to get the medical assistance required (such as testing).  Under those circumstances, employers may want to take a more flexible approach and err on the side of providing the leave of absence. We advise employers to approach these issues cautiously and always consult with legal counsel prior to making a determination.

Second, employers should unambiguously advise their employees that, even if the employer is not requesting documentation at the time of granting the leave or the employee does not possess such documentation at that time, the employer reserves the right to request those documents at a later date or when the employee has access to them.  This can potentially deter employees from taking advantage and abusing leaves of absence under the law.  Employers should further advise their employees that a failure to provide the required documentation, either at the time of request or a later date, may result in disciplinary action, up to and including termination.

Lastly, when an employee requesting a leave of absence to take care of his or her, this may give rise to some problematic issues.  It could be possible that employees who may not even have children may want to take advantage of their legal rights to take a leave of absence.  What type of documentation, if any, can be requested from the employee to verify this type of leave is uncertain.  At the minimum, employers should clearly document with the employee the reason the employee is requesting for the leave and have this confirmed in writing by the employee.  This way, at least the reasons are clearly documented, and if it the employer later learns that the reason was not a legitimate reason under the law for paid leave, the employer could then consider disciplinary action at that time.  However, it is recommendation is to err on the side of caution and grant the leave of absence and to consult with counsel on these issues.

As the DOL provides further guidance, we will keep employers up to date.  The full text of the DOL’s guidance can be found here.

[Update:  The Los Angeles City Council is voting tomorrow (March 27, 2020) at 11 am.  Here is the website:

https://ens.lacity.org/clk/councilagendas/clkcouncilagendas3139754_03272020.html

Live broadcast of the City Council meeting will be here: HTTPS://WWW.LACITY.ORG/GOVERNMENT/FOLLOW-MEETINGS/CITY-COUNCIL-MEETINGS

Members of the public who wish to participate in public comment to the Council should call (669) 900-6833 and use Meeting ID No. 459 499 150 and then press #. Press # again when prompted for participant ID.]

As I wrote about earlier this week, Los Angeles City Council is considering a number of ordinances that will require businesses to provide additional paid sick leave or other benefits to employees during the coronavirus pandemic.

The City Council will review and possibly vote on the  new ordinance tomorrow, Friday March 27, 2020 during an emergency meeting.  The ordinance would provide additional paid sick leave to employees who work in the City of Los Angeles.  The ordinance, provides the following:

  • Employees who have worked for an employer from February 2, 2020 to March 4, 2020 would receive at least 80 hours of paid sick leave.
  • Reasons that an employee could use the paid sick leave include:
    • time off because a “public health official or health provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19”;
    • the employee takes time off because they are at least 65 years old or has a health condition that puts them at risk;
    • the employee is off of work because the business is closed in response to a public official’s closure recommendation;
    • 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 self-quarantine;
    • the employee needs to provide care to family member whose senior care provider, school, or child care provider is closed.

The full text of the proposed ordinance can be read here.

Businesses impacted by this ordinance should contact City Council and voice their concerns.  In addition, they should contact the City Council to see how they can attend the meeting tomorrow on-line.

Name Email Phone Facebook Twitter Instagram YouTube
Council Member District 1 – Gil Cedillo
Council Member District 2 – Paul Krekorian
Council Member District 3 – Bob Blumenfield
Council Member District 4 – David E. Ryu
Council Member District 5 – Paul Koretz
Council Member District 6 – Nury Martinez
Council Member District 7 – Monica Rodriguez
Council Member District 8 – Marqueece Harris-Dawson
Council Member District 9 – Curren D. Price, Jr.
Council Member District 10 – Herb J. Wesson, Jr.
Council Member District 11 – Mike Bonin
Council Member District 12 – John Lee
Council Member District 13 – Mitch O’Farrell
Council Member District 14 – Jose Huizar
Council Member District 15 – Joe Buscaino

Zaller Law Group is hosting a webinar in connection with the California Restaurant Association and Baker, Burton & Lundy, P.C. discussing options business have to address rent during the coronavirus pandemic. Sean Kennedy, Executive Vice President, Public Affairs from the National Restaurant Association will also provide a brief overview of the status of current federal legislative developments at the start of the webinar.  Click here to register.

Date: Friday, March 27, 2020, 11 a.m. – 12 p.m. PT

Topics will include:

  • General overview of commercial tenant obligations and remedies during the COVID-19 pandemic
  • Temporary closures during the pandemic
  • Abatement or non-payment of rent during closures related to the pandemic
  • Overview of common commercial lease provisions including force majeure, abatement of rent due to damage or casualty, and permitted use
  • Common law contract principles such as frustration of purpose and impossibility
  • Other potential sources of tenant relief including insurance and eviction moratoria

Click here to register: https://attendee.gotowebinar.com/register/2526888133132301836

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

Posters:

The DOL also provided a FAQ about the Notice:Families First Coronavirus Response Act Notice – Frequently Asked Questions.

The DOL set forth that employers can satisfy the posting requirement for employees who are working at home by emailing or mailing the notice to employees.  The DOL explains:

 

  • Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice?Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

 

 

The Families First Cornoavirus Response Act signed by President Trump last week on March 19, 2020 (click here for a detailed analysis on the law) tasked the Department of Labor with issuing regulations clarifying the parameters of the new law.  Today, March 24, 2020, the Department of Labor provided its initial guidance on some common questions under the FFCRA:

1. The FFCRA is effective April 1, 2020.

2. Which workers count towards the 500-employee threshold?

The DOL states that employers should count the following workers to determine if they have 500 or more employees to be exempt from the law:

  • Employees on leave
  • Temporary employees who are jointly employed with another employer (regardless of whether the jointly-employed employees are maintained on only one or the other employer’s payroll)
  • Day laborers supplied by a temporary agency

Independent contractors who meet the classification under the FLSA are not considered employees for purposes of the 500-employee threshold.

3. How about separate companies, when will they be considered joint employers under the FFCRA?

The DOL provides the following explanation:

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

4. How do companies with fewer than 50 employees qualify for an exemption from the law?

This is still a bit uncertain.  The DOL instructs employers to “document why your business with fewer than 50 employees meets the criteria set forth by the Department.”  However, further details about the exemptions will be provided in forthcoming regulations.  Currently, the DOL does not want any employers sending materials seeking this exemption.

Hopefully we will have further clarifying regulations published by the DOL this week.

Los Angeles employers, like every other business across the state and the country have been devastated during the near-economic collapse brought on by the coronavirus epidemic.  However, now Los Angeles City is looking to add even more burdens on businesses looking for ways to stay in business.

The City of Los Angeles is considering two emergency measures, 72J and 73KK that will restrict businesses’ ability .

Motion 72J provides for the following:

Cities like Philadelphia have also adopted the policy of just cause for laying off workers, in which employers must show a bona fide reason to terminate employees. Los Angeles should pursue a similar policy.

In addition, the City should require employers to provide worker recall rights, in which laid-off workers have right of first refusal to return to jobs once businesses reopen.

Lastly, the City should pursue a worker retention policy in the case of bankruptcy or transfer of ownership. As some businesses declare bankruptcy and transition to alternate owners, the new owners should be required to retain the same employees. This is particularly of concern in the hospitality and tourism industries.

The motion asked the City Attorney to draft an emergency ordinance that would apply retro-actively to March 1, 2020 that would only permit employers to terminate an employee for “just cause.”  Employers could only terminate employees in order of seniority.  In addition, if a company takes over ownership of a prior company, the new company would be required to give preference to the employees previously employed at the same worksite in order of seniority.  Finally, the motion would require employers to permit employees to take a total of 15 one-minute breaks every 4 hours to wash their hands.

Motion 72KK seeks to have the City to establish regulatory guidelines for hospitality workers requiring:

  • Any layoffs could only be done by seniority;
  • Re-hiring employees could only be by seniority;
  • Require “just cause” terminations; and
  • “worker retention”

I’m not exactly clear what the “worker retention” prevision envisions, but I expect that it would prohibit employers from terminating employees and forcing them to keep employees on the payroll even if the company cannot afford to do so.

To the extent any businesses in Los Angeles survive the coronavirus shutdown, if any of these measures pass, it will have the effect of eliminating these businesses.

Businesses affected by these measures, should they pass, should contact LA City Council members to express their concerns:

Councilmember Gil Cedillo, CD1
gilbert.cedillo@lacity.org; 213-434-4054

Councilmember Paul Krekorian, CD2
paul.krekorian@lacity.org; 213-473-7002

Councilmember Bob Blumenfield, CD3
councilmember.blumenfield@lacity.org; 213-473-7003

Councilmember David Ryu, CD 4
cd4.issues@lacity.org; 213-473-7004

Councilmember Paul Koretz, CD5
paul.koretz@lacity.org; 213-473-7005

Council President Nury Martinez, CD6
councilmember.martinez@lacity.org; 213-473-7006

Councilwoman Monica Rodriguez, CD 7
councilmember.rodriguez@lacity.org; 213-473-7007

Councilmember Marqueece Harris-Dawson, CD 8
councilmember.harris-dawson@lacity.org ; 213-473-7008

Councilmember Curren Price, Jr., CD 9
councilmember.price@lacity.org; 213-473-7009

Councilmember Herb Wesson, CD 10
herb.wesson@lacity.org; 213-473-7010

Councilmember Mike Bonin, CD 11
councilmember.bonin@lacity.org; 213-473-7011

Councilmember John Lee, CD 12
councilmember.lee@lacity.org; 213-473-7012

Councilmember Mitch O’Farrell, CD 13
councilmember.ofarrell@lacity.org; 213-473-7013

Councilmember Jose Huizar, CD 14
councilmember.huizar@lacity.org; 213-473-7014

Councilmember Joe Buscaino, CD 15
councilmember.buscaino@lacity.org; 213-473-7015