Seyfarth Synopsis: On May 19, 2020, the City of Long Beach joined a growing number of California cities and counties that have extended COVID-19 related paid sick leave to employees who would not be eligible for analogous paid federal leave. Long Beach passed an emergency ordinance requiring employers with over 500 employees to provide paid supplemental sick leave to certain workers affected by COVID-19, effective immediately.
Covered Employers. The ordinance requires private employers with 500 or more employees nationwide to provide employees with Paid Supplemental Sick Leave (PSSL) for certain COVID-19 related absences.
Covered Employees. The ordinance covers any employee who performs any work within the geographic boundaries of the City of Long Beach subject to the exemptions below.
Covered Reasons. Employees are entitled to PSSL if (1) the employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19, (2) the employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider, (3) the employee experiences symptoms of COVID-19 and is seeking medical diagnosis, or (4) the employee is caring for a minor child because the child's school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.
Exemptions. Employers need not provide PSSL to employees who can work from home and are healthy enough to do so. Employers are exempt from providing PSSL to health care providers “capable of providing health care services necessary to combat the COVID-19 public health emergency” or specific “emergency responders,” but are encouraged to be judicious in determining whether those exemptions apply. The ordinance does not apply to employees of government agencies. PSSL can be waived in a collective bargaining agreement that specifically provides COVID-19 sick leave. PSSL may be waived in future CBAs where employees acknowledge they are entitled to the PSSL, but explicitly agree to waive the leave. There is also an exemption for employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
Offset. In addition, the required PSSL can be reduced for every hour that the employer, as of March 4, 2020, already allowed employees to take paid leave for a COVID-19 related reason identified above, or in response to an employee’s inability to work due to COVID-19.
Amount of PSSL Required. Full time employees are entitled to 80 hours of PSSL. Part time employees are entitled to PSSL hours equal to the number of hours they work, on average, over a two-week period. PSSL cannot exceed $511 per day or $5110 in total. Notwithstanding the foregoing, the employer may pay an employee using PSSL for a purpose that relates to care for another person at two-thirds of the employees’ regular rate of pay up to $200 per day and not to exceed an aggregate of $2,000.
Paid Time Off Policies. An employer may not change a paid time off policy on or after the effective date of the ordinance except to provide additional paid leave.
No “Finding Replacement” As A Condition. An employer may not require an employee to find a replacement as a condition of providing PSSL.
No Doctor’s Note Requirement. An employer may require the employee to identify the basis for requesting PSSL, but may not require a doctor’s note or other documentation for the use of PSSL.
Reasonable Notice When Need Is Foreseeable. An employer may require the employee to follow reasonable notice procedures to use the PSSL, but only when the need for PSSL is foreseeable.
Independent Right to Leave. Aside from rights and remedies provided in the federal Families First Coronavirus Response Act and the Governor’s Executive Order N-51-20 covering food sector workers, the ordinance’s provisions are independent of any other rights, remedies, or procedures.
That means employers must still provide any other applicable leave. Employers cannot require employees to exhaust sick leave or other accrued leave prior to use of PSSL.
No Pay For Unused PSSL. Employees are not entitled to be paid for unused PSSL. Unused PSSL will not be available to employees after the ordinance is no longer in effect. Further, upon an employee’s separation from employment, an employer need not provide or pay for any PSSL not used prior to separation.
No Firm End Date. There is currently no end date for the ordinance; the city manager must report to the City Council and Mayor every 90 days for the City Council to determine whether to continue the ordinance. Determinations will be made after each report.
Consequences for Failure to Comply. Employees claiming a violation can sue for reinstatement, back pay, PSSL unlawfully withheld, punitive damages, and other legal or equitable relief. A prevailing employee can also seek reasonable attorneys’ fees and costs.