Los Angeles: An Update On COVID-19 Supplemental Paid Sick Leave Laws

By Swerdlow Florence Sanchez Swerdlow & Wimmer

February 22, 2021

On January 26, 2021, Los Angeles County extended the County’s COVID-19 Supplemental Paid Sick Leave Ordinance, which expired on December 31, 2020. The new ordinance now continues “until two weeks after the expiration of the COVID-19 local emergency as ratified and declared” by the Los Angeles County Board of Supervisors. Below is a summary of the changes to the extended ordinance and a snapshot of the status of federal, state, and local COVID-19 paid sick leave requirements.

Families First Coronavirus Response Act (FFCRA) & Emergency Paid Sick Leave

As we reported last year, the United States Congress passed the federal Families First Coronavirus Response Act (“FFCRA”) at the onset of the pandemic, requiring employers with fewer than 500 employees to provide up to two weeks of Emergency Paid Sick Leave (“E-PSL”) for employees unable to work or telework due to specified reasons related to COVID-19. The FFCRA also required Emergency Family and Medical Leave (“E-FMLA”) for employees unable to work or telework due to a bona fide need for leave to care for a child whose school or child care provider was closed or unavailable for reasons related to COVID-19. Although the mandate to provide EPSL and E-FMLA expired on December 31, 2020, Congress has permitted FFCRA-covered employers who voluntarily extend such paid leaves to receive federal payroll-tax credits through March 31, 2021.

California AB 1867

In September 2020, California passed AB 1867, which required private employers with 500 or more employees nationwide to provide their California employees with paid sick leave for specific COVID-19-related reasons. AB 1867 covered “emergency responder” and “health care provider” employees, who the FFCRA permitted employers to exempt from coverage under FFCRA. AB 1867 also required COVID-19 supplemental paid sick leave for food sector workers of private employers with 500 or more employees.(This codified an executive order that Governor Newsom signed on April 16, 2020, for food sector workers.) AB 1867 expressly provided that the supplemental paid sick leave requirements would expire on December 31, 2020, or upon the expiration of any federal extension to the FFCRA, whichever is later. Because the United States Congress extended only tax credits for employers with fewer than 500 employees offering paid sick leave for COVID-19 related reasons, and not the mandate to provide E-PSL, California’s state-wide requirement to provide supplemental paid sick leave expired on December 31, 2020.

City of Los Angeles

Following the passage of the FFCRA in 2020, cities and counties in California passed ordinances requiring COVID-19 paid sick leave for employers not covered by the FFCRA. For example, in April 2020, the City of Los Angeles required employers with either 500 or more employees within the City or 2,000 or more employees within the United States to provide COVID-19 supplemental paid sick leave to employees performing work within the City of Los Angeles, with certain exceptions. The ordinance has no specific expiration date and instead provides that it will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

Los Angeles County COVID-19 Supplemental Paid Sick Leave Ordinance

In April 2020, Los Angeles County also passed an ordinance requiring employers with 500 or more employees nationally to provide COVID-19 supplemental paid sick leave to any individual who performs work within the County of Los Angeles, with certain exceptions. Although the original ordinance expired on December 31, 2020, the Los Angeles County Board of Supervisors passed a new ordinance on January 26, 2021, that retroactively applies as of January 1, 2021.

The new ordinance, available here, has noteworthy changes. First, the amended ordinance requires all private employers in unincorporated parts of Los Angeles County – regardless of size – to provide supplemental paid sick leave. The 500-employee threshold, therefore, no longer applies. Additionally, although certain food sector workers were excluded from the original ordinance, they are eligible to receive supplemental COVID-19 paid sick leave under the new ordinance. (Employers may continue, however, to exclude emergency responders and health care providers.)

Like the original ordinance, the amended County ordinance requires covered employers to provide COVID-19 supplemental paid sick leave to employees upon written request (including, but not limited to, email and text) if the employee cannot work because:

•    A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
•    The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., 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);
•    The employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
•    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 childcare provider ceases operations in response to public health or other public official’s recommendation.

Employees who work at least 40 hours per week or who are classified as full-time employees are entitled to 80 hours of supplemental paid sick leave. Employees who work less than 40 hours per week and are not classified as full-time employees are entitled to paid sick leave calculated at the employee’s average two-week pay over the period of January 1, 2020, to January 1, 2021. An employee who has already exhausted their supplemental paid sick leave under the original County ordinance or the FFCRA by December 31, 2020, is not eligible for any additional supplemental sick leave.

The County’s ordinance permits employers to require a doctor’s note or other documentation confirming the employee’s entitlement to COVID-19 supplemental paid sick leave. This is in contrast with the City of Los Angeles’ ordinance, which prohibits requiring such documentation.

The amended County ordinance has no expiration date. Like the City’s ordinance, the County’s ordinance is in effect until two calendar weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board of Supervisors.

Contact your SFSSW attorney if you have questions regarding COVID-19 paid sick leave or if you need assistance in implementing any federal, state, or local requirements.