The Families First Coronavirus Response Act (FFCRA) imposes new requirements – and offers off-setting tax credits – for employers with fewer than 500 employees to provide paid leave for COVID-19-related reasons, as previously explained here, here and here. That left many employers with more than 500 employees assuming they were off the hook, but if they have employees in certain California cities, that may not be the case.
Several local California governments have imposed additional paid leave requirements for larger employers, without an offsetting tax credit or other funding mechanism, meaning the employer will bear the full cost.
Los Angeles already had its own paid sick leave requirements prior to the COVID-19 outbreak. But on April 7, 2020, Los Angeles implemented an ordinance that requires supplemental paid leave for all companies with at least 500 employees in the city or 2,000 or more in the United States. They must provide up to 80 hours of supplemental paid sick leave (capped at US$511/day and US$5,110 in aggregate) to employees who (i) has been employed with the same employer from February 3, 2020 through March 4, 2020; (ii) is unable to work or telework; and (iii) works at least 40 hours per week or is classified as a full-time employee by the employer. Employees that otherwise are eligible but who work less than 40 hours per week or are not classified as full-time are eligible for 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.
The supplemental paid sick leave provided under the Los Angeles ordinance may be used if the employee:
(1) Needs time off due to a COVID-19 infection or because self-quarantine has been recommended or required by a public health official or health care provider;
(2) 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) Needs to care for a family member for whom quarantine/self-isolation has been recommended or required by a health care provider or public health official; or
(4) Needs to care for a senior or minor family member whose regular care provider has temporarily ceased in response to a public health or other public officials recommendation and the employee is unable to secure a reasonable alternative caregiver.
On one hand, the Los Angeles ordinance is narrower than the FFCRA in that there is no requirement to provide 10 weeks of leave for child care. On the other hand, the ordinance is broader than the FFRCA in several respects, including expanding the circumstances in which the sick leave may be used and prohibiting employers from requiring a doctor’s note or documentation for supplemental paid leave.
The Los Angeles law has some exemptions similar to the FFCRA, e.g., emergency and health care workers, but it also exempts global parcel delivery services, employers that provide 160+ hours annually in paid time off, new businesses, and businesses closed for a period of at least 14 days because of the Safer at Home order.
Companies that fail to comply could be liable for back pay and attorneys’ fees, and employees may not waive the paid leave.
San Jose, while covered by the state’s paid sick leave law, has no general city-mandated leave requirement, but on April 7, 2020, it also imposed a requirement for paid sick leave to supplement the FFRCA.
It enacted an ordinance that requires Essential Businesses (as defined in the March 16, 2020 Order of the Health Officer of the County of Santa Clara) with employees who work at least two hours in San Jose to provide up to 80 hours of paid sick leave which is paid at a rate:
(1) Equal to daily wages up to US$511/day (US$5,110 in aggregate) for employees who: (a) have been diagnosed with COVID-19; (b) are experiencing COVID-19 symptoms and seeking a medical diagnosis; or (c) have been advised by a health care provider to self-quarantine; or
(2) Equal to two-thirds daily wages up to US$200/day (US$2,000 in aggregate) for employees who are caring for someone: (a) who is quarantined or isolated because of COVID-19; (b) has been advised by a health care provider to self-quarantine; or (c) is a minor child whose school or daycare is closed due to COVID-19.
The ordinance expressly applies to employers that are not required to provide paid leave under the FFCRA, but it exempts hospitals, employees who can work at home, and employers that provide some combination of paid time off that is at least equivalent to the ordinance. It also specifically does not apply to employees that are able to work from home. It expires on December 31, 2020, like the FFCRA.
The City’s Office of Equality Assurance is authorized to establish reasonable notice requirements and to enforce the ordinance.
More Local Changes
More local requirements are expected in the coming days. The City of San Francisco has already expanded use of paid sick leave accrued under its existing ordinance, but the Board of Supervisors approved an ordinance that would extend paid leave to employers with more than 500 employees. As of the writing of this blog, the ordinance was awaiting action by the mayor.
Additionally, municipal governments are starting to impose other COVID-19-related regulations. Los Angeles, for example, began requiring many essential businesses to provide face coverings and handwashing breaks every 30 minutes. It also imposed a requirement that employers permit schedule changes for workers who need to care for their children and family members.
The changes are likely to continue, creating new compliance requirements that vary across jurisdictions. For more information regarding California paid leave requirements or other issues related to COVID-19 and the workplace, please contact one of the authors of this blog post or the Hogan Lovells lawyer with whom you work.