Making it one of the most difficult cities to conduct business in, the L.A. City Council just passed a COVID-19 Supplemental Paid Sick Leave law which provides up to 80 hours of supplemental paid sick leave to employees who work within the City of Los Angeles. This ordinance goes into effect immediately upon publication. It will remain in effect until December 31, 2020 unless the City Council decides to extend it. Notably, employees cannot waive their supplemental paid sick leave protections unless they are covered by a collective bargaining agreement that is bilaterally modified. This law only applies to the City and not surrounding County of Los Angeles and its 88 other cities.
The Ordinance Covers Employers with 500 Nationwide Employees
- Employers who have more than 500 employees nationally. This seems to further drive a business away from LA, if even a fraction of the workforce is in the City, I would personally move to Manhattan Beach.
- Employees who were employed from February 3, 2020 to March 4, 2020. There is a presumption that an individual is an employee. An employer must rebut this presumption in order to show an individual is actually an independent contractor.
- Exceptions: Healthcare providers or first responders (peace officer, firefighter, paramedic, emergency medical technician, public safety dispatcher or safety telecommunicator, emergency response communication employee, rescue service personnel) are not covered under the ordinance.
Full time v. Part Time and Total Pay Differ
- Full-time employees (those who work more than 40 hours/week) are eligible to receive up to 80 hours of supplemental paid sick leave calculated based on the employee’s average two-week pay from February 3, 2020 to March 4, 2020.
- Part-time employees (those who work fewer than 40 hours/week) are eligible to receive no greater than the employee’s average two-week pay over February 3, 2020 to March 4, 2020.
The amount an employee can receive is $511 per day and $5,110 total.
Supplemental Paid Sick Leave Be Used For More than Sick Leave
Supplemental paid sick leave must be granted upon oral or written request and no doctor’s note or other documentation is required. So all the employee has to say is “I have a lung issue” and you cannot confirm if they are not being accurate. Uses are limited to taking time off:
- Because healthcare provider requires or recommends the employee isolate or self-quarantine;
- Because the employee is 65 or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- 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
- To provide care for a family member whose senior care provider or school or childcare provider (children under 18) closes in response to public health or other public official’s recommendation.
Exemptions and Offsets to Supplemental Paid Sick Leave
- Supplemental paid sick leave under this ordinance runs concurrently with paid sick leave under the Families First Coronavirus Response Act (FCCRA). However, supplemental paid sick leave under this ordinance is in addition to California/Los Angeles-mandated paid sick leave.
- Offsets: If an employer has already provided paid leave since March 4, 2020 for COVID-19 related purposes, any hour will be offset against the 80-hour requirement. For example, if an employer has already provided an employee 5 hours of paid leave for COVID-19 purposes post-March 4, 2020, the employee would only be obligated to provide 75 hours to a full-time employee under this ordinance.
Penalties For Noncompliance are significant
The bill clearly states that employers cannot retaliate against employees who request or take supplemental paid sick leave. Employees can also bring actions against their employer in the State of California and be awarded:
- Reinstatement, if they were terminated;
- Backpay and supplemental paid sick leave that was unlawfully withheld (calculated at the employee’s average rate of pay); and
- Other legal or equitable relief the court may deem appropriate.
If an employee prevails against an employer, the court can also award attorneys’ fees and costs.
Closed Or Laid-Off Employees Are Covered
The bill is silent as to the responsibilities of employers who have temporarily closed or laid-off employees since March 4, 2020 (the end of the time period for calculating payment). As a result, it would appear that even if a company is closed, if it meets the 500 Employee nationwide size requirements, there is no express exemption for these employers.
Unemployment Insurance (PUI)
An employee whose hours are cut may file a claim for partial unemployment insurance benefits. EDD provides employers with a Notice of Reduced Earnings, DE 2063. The employer completes the DE 2063 to certify that the employee is expected to return to work, and gives the form to its employees, who use the DE 2063 to file a UI claim.
Employees who use the DE 2063 to file for UI benefits are not required to look for new jobs because their employer has certified that there will be a job for them shortly. These employees are considered “partially unemployed.”
Claimants can contact EDD to file a claim for partial UI. They should be prepared to provide the following (1) Name and social security account number (2) Mailing and residence address (if different) (3) Telephone number (4) Last employer information, including that employers – Name, address (mailing and physical location) and telephone number (5) Information on all employers during the 18 months prior to claim filing claim, including: – Name, period of employment, wages earned and how paid (6) Driver’s license or ID card number, if employee has either (7) Last date worked and the reason employee is no longer working (80) Citizenship status (which may include alien registration number)
If the Department needs to verify any of the information provided while filing a claim, additional forms will be sent by mail and additional information and/or documentation will be requested.
California Work Sharing Program (WSP)
The other “alternative” to a layoff in California is the Unemployment Insurance Work Sharing Program (“WSP”). The WSP features, as published on the EDD website, are set forth below. However, it is unclear whether California is administering this program now. A call to the WSP office to ascertain if this program is active and how to access it has not been returned. Participation in the program requires an employer to submit an application and to be “approved.” Again, it is not clear if this process is now in place. Employers can apply for the WSP if reduced production, services, or other conditions cause them to seek an alternative to layoffs. The WSP helps employees whose hours and wages have been reduced; (1) Receive UI benefits (2) Keep their current job and (3) Avoid financial hardships. The WSP helps employers minimize or eliminate the need for layoffs.
Apply for a Work Sharing plan by completing and mailing the Work Sharing (WS) Unemployment Insurance Plan Application (DE 8686) (PDF). The earliest date for a Work Sharing plan to become effective is the Sunday before the first date the employer contacts the EDD. All Work Sharing plans are approved for one year.
Employers can renew a Work Sharing plan by completing and mailing the Work Sharing (WS) Unemployment Insurance Plan Application (DE 8686)(PDF). A Work Sharing plan will be
renewed the day after your previous plan expires.
Please stay healthy as we continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. If you have any questions about whether you have been paid properly or paid all minimum wages or asked to work off the clock or believe you have a claim against your employer for any violation of the California Labor Code, please feel free to call us at 949.458.9675 or email Rich Quintilone II Esq at email@example.com if you have any questions. Alejandro Quinones Esq. firstname.lastname@example.org – yo hablo español.