On April 11, 2020, the Los Angeles Office of Wage Standards published Rules and Regulations implementing Mayor Eric Garcetti’s emergency order on supplemental paid sick leave due to COVID‑19, issued on April 7, 2020. The Rules and Regulations provide helpful guidance regarding the applicability of the Order.
Determining Who is a Covered Employee
The Order applies to an employee who has been employed with the same employer from February 3, 2020 through March 4, 2020 and is unable to work or telework for that employer.
A covered employee is any individual who performs any work within the geographic boundaries of the City for an employer. Notably, the Order covers employees who normally work outside of the City, but who are telecommuting from home within the City. In addition, the Order notes that all workers are presumed to be employees, and that the employer has the burden to demonstrate that a worker is a bona fide independent contractor.
Employees working for employers with employees who are emergency personnel and healthcare workers (as defined by statute), or who provide global parcel delivery services, are not covered by the Order. Employees covered by certain collective bargaining agreements and certain new businesses also are exempt.
Determining Who is an Employer
The Order applies to employers with either (1) 500 or more employees within the City or (2) 2,000 or more employees within the United States.
The size of an employer’s business shall be determined by the average number of employees employed during the previous calendar year. The number of employees includes, but is not limited to workers that were full-time employees, part-time employees, temporary, or seasonal employees, and workers supplied through a temporary employment agency.
A worker that worked in multiple locations should be counted as an employee within the City of Los Angeles if they performed any work within the City’s geographic boundaries in the previous calendar year.
Generous Leave Exemption
An employer with a paid leave or paid time off policy that provides employees with 160 hours or more of paid leave on an annual basis is exempt from providing supplemental paid sick leave to those employees. This includes, but is not limited to, paid vacation time, compensated time off, and paid sick leave. Paid holidays and access to paid bereavement leave do not count toward the 160 hour minimum. Any employee who does not receive 160 hours or more of annual paid leave is covered by the Order.
An employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave. Furthermore, an employer may not inquire into or require an employee to provide a description or explanation of the illness or condition necessitating the employee’s leave. However, an employer may require an employee to, verbally or in writing, provide the reason for taking leave—such as child care, quarantine, vulnerable medical condition, or caring for a family member—for purposes of recordkeeping. The employer’s policy should not be so difficult that it deters an employee from taking legitimate supplemental paid sick leave.
Calculating Sick Leave Pay
The rate of pay for supplemental paid sick leave hours is calculated at an employee’s average two-week pay between February 3, 2020 and March 4, 2020. Overtime premiums are not to be considered when calculating an employee’s average two-week pay.
The amount of supplemental paid sick leave hours that must be provided to an employee who works less than 40 hours per week and is not classified as a full-time employee by the employer is determined by adding the number of hours worked in four consecutive weeks during this period and dividing that total by two.
The supplemental paid sick leave amount paid to an employee shall not exceed $511 per day and $5,110 in the aggregate.