Los Angeles Mayor Eric Garcetti Issues Emergency Orders Requiring Face Coverings And Providing Supplemental Paid Sick Leave

By Swerdlow Florence Sanchez Swerdlow & Wimmer

April 10, 2020

Late on April 7, 2020, Mayor Eric Garcetti issued two Emergency Orders affecting businesses and individuals in the City of Los Angeles. First, the Worker Protection Order requires some Essential Businesses to provide face coverings to all employees. And, second, the Supplemental Paid Sick Leave Due to COVID-19 Order provides emergency paid sick leave to employees of large businesses that were not covered by recent federal legislation. These Orders follow orders issued in the City of Los Angeles aimed to combat the spread of COVID-19, including the Safer at Home Emergency Order.

Worker Protection Order

The Worker Protection Order, which becomes effective at 12:01 a.m. on Friday, April 10, 2020, applies to a subset of the Essential Businesses that are exempt from the Safer at Home Emergency Order of March 19, 2020, (the "Covered Employers") such as grocery stores, hardware and building supply stores, plumbers, electricians, custodial/janitorial workers, gardeners and other maintenance workers, restaurants, shipping businesses, hotels and transportation services. Notably, the Worker Protection Order does not apply to all Essential Businesses from the Safer at Home Emergency Order including newspapers, auto repair shops, banks and legal and accounting service providers.

The Worker Protection Order requires the following:

• All workers of Covered Employers must wear face coverings over their noses and mouths.

• Covered Employers must provide all workers with face coverings at the employer’s expense. The face coverings may be made of fabric and do not need to be medical grade masks.

• Covered Employers must permit their employees to wash their hands at least every 30 minutes.

• Covered Employers must ensure that all employees have access to clean, sanitary restrooms that are well stocked with cleaning and sanitizing supplies.

• Covered Employers must implement social distancing of at least six feet, to the extent possible, for employees, customers and visitors.

• All customers and visitors of Covered Employers must wear coverings over their noses and mouths.

• Business owners of Covered Employers are permitted to refuse service to any customer or individual who is not covering his or her nose and mouth.

There is no minimum number of workers that a business must employ to be considered a Covered Employer under the Worker Protection Order. As such, individuals who employ domestic workers in the City of Los Angeles must comply with its requirements.

Supplemental Paid Sick Leave Due to COVID-19

Mayor Garcetti also issued an Emergency Order regarding Supplemental Paid Sick Leave Due to COVID-19 (the "Order"), which became effective immediately on April 7, 2020. The Order provides for 80 hours of additional paid sick leave to employees in the City of Los Angeles who work for some of the larger employers that were not covered by the federal Families First Coronavirus Response Act ("FFCRA"). In doing so, the City has expanded upon what Congress enacted and has acted without regard to how much time an employee actually works within the City. Moreover, unlike the FFCRA, there are no tax credits for employers who provide benefits under this Order.

Which Employers Are Covered By The Order?

The Order applies to all employers with 500 or more employees within the City of Los Angeles or 2,000 or more employees nationally. There are a few exceptions to this Order; see below.

Which Employees Are Covered By The Order?

An employee who performs any work within the City of Los Angeles, has been employed by the same employer from February 3, 2020, through March 4, 2020 and is unable to work or telework is eligible to receive paid sick leave under the Order. The Order does not provide a minimum amount of time an employee must spend working in the City of Los Angeles to be eligible for benefits. And, there are no pro-rata adjustments provided for employees who spend only some of their working time within the City of Los Angeles.

What Can Supplemental Paid Sick Leave Be Used For?

Employers are required to provide paid sick leave if an eligible employee requests, either verbally or in writing, to take time off due to any one of the following four circumstances:

1. Due to COVID-19 infection, or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent 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 needs 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

4. The employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

These four reasons are similar to, but not the same as, the reasons for which Emergency Paid Sick Leave may be taken under the federal FFCRA for smaller employers. Despite providing only four enumerated reasons for leave, this Order appears to expand the opportunity for paid leave beyond what the FFCRA provides. Unlike the FFCRA, this Order provides leave to those who need to care for older family members whose senior care providers are closed as well as for children whose schools or childcare providers cease operations in response to public health recommendations. In addition, #2 above is more explicit and easily met than its FFCRA counterpart, which requires the recommendation of a healthcare provider to self-isolate or self-quarantine because an individual has, may have or is "particularly vulnerable" to COVID-19.

Documentation Not Required

Employers may not require a doctor’s note or other documentation for the use of supplemental paid sick leave under the Order.

How Much Paid Leave Is Provided?

Employees who work at least 40 hours per 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, through March 4, 2020.

Employees who work fewer than 40 hours per week are eligible to receive no greater than the employee’s average two week pay from February 3, 2020, through March 4, 2020.

The amount an employee can receive is capped at $511 per day and $5,110 in the aggregate, regardless of the reason for leave. (By contrast, federal law caps at $200/day the payment to an employee who takes leave similar to reason #4, above.)

Runs Concurrently With FFCRA

Although it is unlikely that an employer would be covered by both the FFCRA and this Order, the supplemental paid sick leave under this Order runs concurrently with paid leave provided under the FFCRA.

Exemptions and Offsets

As described below, the Order exempts certain employers that provide critical delivery services, are new to the City of Los Angeles, have been forced to close due to COVID-19 or already provide a significant amount of paid leave to employees.

Emergency and Health Services Personnel: Employers of Emergency Personnel or health care workers are exempt from the Order. Emergency Personnel include first responders, public health workers, gang and crisis intervention workers, law enforcement, emergency dispatchers, emergency management personnel and related contractors and others working for emergency service providers.

Critical Parcel Delivery: Employers that provide global parcel delivery services are exempt from the Order. However, the term "global parcel delivery service" is not defined in the Order.

Generous Leave Policies: Employers who have paid leave policies that provide at least 160 hours of paid leave annually are exempt from this Order as to those employees who receive at least 160 hours of paid leave annually.

New Business Exemption: Businesses new to the City of Los Angeles that opened or relocated to Los Angeles from September 4, 2019 through March 4, 2020, are exempt from this Order. To be exempt, an employer could not have been in business in the City of Los Angeles in the 2018 tax year. However, construction businesses and film producers do not qualify for this new-business exemption.

Government: The Order does not apply to employees of government agencies.

Closed Businesses: Any business or organization that was closed or out of operation for a period of 14 days or more due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave is exempt from this Order (the Order does not explain what type of 14-day leave must been provided for a business to qualify for this exemption and we hope to receive additional guidance from the City on this issue.)

Offsets: Supplemental paid sick leave provided under this Order is in addition to previously accrued leave, including state and local-mandated paid sick leave. However, if an employer has provided paid leave since March 4, 2020, in response to an employee’s inability to work due to COVID-19 in addition to any previously accrued paid leave, those additional hours provided will be offset against the total hours required under the Order.

Penalties For Noncompliance

Employers cannot retaliate or otherwise discriminate against employees who seek to enforce their rights under this Order or participate in proceedings related to this Order. The Order creates a private right of action for employees claiming a violation. A prevailing employee may be reinstated to his or her job, awarded back pay and supplemental paid sick leave unlawfully withheld and granted other appropriate equitable relief. In addition, successful claimants may be awarded their attorneys’ fees and costs.

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We anticipate that the Office of Wage Standards of the Bureau of Contract Administration will post Rule and Regulations consistent with the Supplemental Paid Sick Leave Order soon. Contact your SSFS&W attorney if you have questions relating to the Order or any other workplace challenges associated with the COVID-19 pandemic.