Los Angeles is the latest jurisdiction to offer paid leave to those impacted by the pandemic, following New York, Colorado, Michigan, and the cities of San Francisco and San Jose. This appears to be part of a developing trend as jurisdictions try to protect workers not entitled to coverage under the Families First Coronavirus Response Act’s (FFCRA) limited application to businesses with fewer than 500 employees.

On April 7, 2020, Mayor Garcetti used his Emergency Authority to issue a Public Order requiring supplemental paid sick leave due to COVID-19 (LA paid pandemic leave) for employees of large businesses not covered by the FFCRA. The City claims the ordinance strikes a necessary balance between employers’ and employees’ interests. LA paid pandemic leave under the Ordinance is in addition to other required leave under Los Angeles and California Law, including the Los Angeles Paid Sick Leave Ordinance (LA PSL). This alert addresses the scope of LA paid pandemic leave coverage and also highlights similarities and differences between LA paid pandemic leave, LA PSL and FFCRA leave.

Covered Employers

LA paid pandemic leave. The LA paid pandemic leave applies to employers who have either more than 500 employees within Los Angeles or more than 2,000 employees nationally, unless the employer falls into one of the four following exemptions:

  1. Employers that commenced or relocated into Los Angeles between September 4, 2019 and March 4, 2020;
  2. Government agencies;
  3. Employers that were either closed or not operating for fourteen or more days due to a City Official’s emergency order related to COVID-19 or have already provided at least fourteen days of leave; and
  4. Employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.

Note that construction employers and film producers may not rely on the first exemption.

FFCRA. Unlike the LA paid pandemic leave, the FFCRA applies to private employers with fewer than 500 employees, public agencies regardless of size, and any successor in interest of an employer, except that employers with fewer than 50 employees may be exempted from school closure leave if the leave would jeopardize the viability of the business as a going concern. For more information about these issues, see our FFCRA Alert here.

LA PSL. Unlike both the LA paid pandemic leave and FFCRA, the LA PSL applies to all employers who operate in Los Angeles regardless of the number of employees.

Covered Employees

LA paid pandemic leave.LA paid pandemic leave is available to employees who perform any work within the geographic boundaries of Los Angeles and who were employed from February 3, 2020, through March 4, 2020, with the exception of employees of healthcare providers, first responders, and global parcel delivery services.

FFCRA. Sick leave under the FFCRA can be taken by all employees of covered employees, although expanded Family Leave is available only to those employed for at least 30 days. An employer may exclude workers who are health care providers or emergency responders from using either type of leave.

LA PSL. A covered employee under the LA PSL is one who works at least two hours a week in Los Angeles for the same employer for 30 days or more annually.

Qualifying Reasons for Requesting Leave

LA paid pandemic leave. An employer must provide paid leave for the four following reasons:

  1. A healthcare provider requires or recommends the employee isolate or self-quarantine to limit 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 weakened immune system;
  3. The employee is caring for a family member who a health care provider has ordered or recommended should isolate or self-quarantine and is not sick; and
  4. The employee is caring for a family member whose senior care provider, school, or childcare facility has closed as a result of COVID-19.

FFCRA. Although the FFCRA overlaps the LA paid pandemic leave ordinance in some ways, there are differences. An employer must provide leave under the FFCRA if an employee gives proper notice and the leave is for one of the six following reasons:

  1. To comply with a federal, state, or local quarantine or isolation order related to COVID-19;
  2. A health care provider advised the employee to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2);
  5. The employee is caring for a child whose school or childcare facility is closed or whose child care provider is unavailable due to COVID-19; and
  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.

LA PSL. An employer must provide paid sick leave to an employee to care for him/herself, a family member, or an individual related by blood or affinity. Paid sick leave may be used for the purposes of diagnosis, care (including preventative care), or treatment of an existing health condition. An employee who is a victim of domestic violence, sexual assault, or stalking may also use leave under LA PASL.

Supporting Documentation and Notice Requirements

LA paid pandemic leave. An employee’s request for leave may be oral or written. Unlike both the FFCRA and LA PSL, an employer may not require the employee to produce a doctor’s note or other supporting documentation for requesting leave.

FFCRA. The FFCRA also allows oral notice, but the employer must create a written record of the notice. The employer should require the employee to certify the supporting reasons for the leave, and may need this certification to justify the employer’s payroll tax credit submission. For additional information about the documentation and sample request forms, see our Resource Center under the Labor and Employment tab.

LA PSL. An employee’s request for leave may be oral or written. An employer may require the employee to provide supporting documentation.

Amount of Paid Leave and Caps on Pay

The amount of paid leave and caps on pay under the LA paid pandemic leave are similar to the FFCRA in most circumstances. For example, under the LA paid pandemic leave, a full-time employee is generally eligible to receive up to 80 hours of leave, and may receive no more than $511 a day or a total of $5,110. In certain circumstances, such as for a part-time employee, these amounts will be different.

In addition, unlike the FFCRA, the LA paid pandemic leave does not provide different pay for different reasons for taking leave. Instead, the amount of pay for leave taken for any qualifying reason is $511 a day or a total of $5,110. The FFCRA, on the other hand, caps pay at $200 a day or a total of $2,000 when the reason for taking leave is to care for a child whose school or childcare facility has closed.

Enforcement

The LA paid pandemic leave provides a private right of action for violations of the ordinance. Remedies include reinstatement, back pay, any unpaid supplemental sick leave, and reasonable attorneys’ fees and costs.

Ballard Spahr’s Labor and Employment Group is closely following state and local COVID-19 legislation and other developments related to COVID-19 as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.


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