Seyfarth Synopsis: On March 27, 2020, the Los Angeles City Council passed several COVID-19 related ordinances, which were submitted to Mayor Garcetti for consideration. Among these were ordinances requiring certain employers to provide supplemental paid sick leave to employees for various COVID-19-related absences and creating protections for grocery store workers. On April 7, 2020, Mayor Garcetti issued orders that amended and superseded these ordinances. He also issued an order requiring workers to wear employer-provided masks. This new trilogy of COVID-19 orders takes effect on April 10, 2020.
COVID-19 Supplemental Paid Sick Leave
Summary. In an attempt to avoid imposing excessive burdens and costs on businesses, the Mayor’s order departed from the Supplemental Paid Sick Leave Ordinance passed by City Council in a number of significant respects.
Now, effective April 10, 2020 until two calendar weeks after the expiration of Los Angeles’ local emergency period, the order requires employers with either (1) 500 or more employees in the City of Los Angeles; or (2) 2,000 or more employees nation-wide to provide employees with Supplemental Paid Sick Leave (SPSL) for certain COVID-19 related reasons. Covered employers must provide this paid sick leave to employees who are unable to work or telework due to one or more covered reasons (see below) if they were employed by the same employer from February 3, 2020 through March 4, 2020. Full time employees who worked 40 hours a week or more receive 80 hours of SPSL based on their average two-week pay between February 3, 2020 and March 4, 2020. Employees who worked less than 40 hours a week receive SPSL in an amount not greater than their average two-week pay over the period of February 3, 2020 through March 4, 2020. SPSL shall not exceed $511 per day or $5,110 in aggregate.
Covered Reasons for SPSL. SPSL is available upon oral or written request when (1) the employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends self-isolation or quarantine; (2) the employee is at least 65 years or has a health condition such as “heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;” (3) the employee is providing care for a family member who is not sick, but who health officials or healthcare providers have required or recommended quarantine or isolation; and (4) the employee is providing care for a family member whose senior care provider, school or child care provider temporarily ceases operations in response to a public health or other public official’s recommendation. This fourth category of leave is only available to an employee who is unable to secure a reasonable alternative caregiver.
Significantly, employers may not require medical certification or any other documentation substantiating an employee’s need to use SPSL.
Creates Independent Right to Leave. Aside from rights and remedies provided in the federal Families First Coronavirus Response Act (FFCRA), the order’s provisions are independent of any other rights, remedies, or procedures. Employers must still provide other applicable city and state leave.
Exceptions. The order includes a number of exemptions for:
Employers who employ emergency and health services personnel (including individuals specified in the City’s April 1, 2020 Safer at Home emergency order, Paragraph 5(vi)); first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement, and related contractors and others working for emergency services providers, and certain health care providers (as defined by Section 12945.2 of the California Government Code) and health facilities licensed under California Health & Safety Code Section 1250.
Critical parcel delivery services providing global parcel delivery.
Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours annually when the employee has received the more generous paid leave.
New businesses that started or relocated in the City of Los Angeles on or after September 4, 2019 through March 4, 2020 (but not construction businesses as defined by Section 21.30 b.1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code). An employer that was in business in the City in the 2018 tax year would not be eligible for this exemption.
Employees of government agencies working within the scope of their employment.
Businesses that were closed or not operating 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.
SPSL may also be expressly waived in clear and unambiguous terms through a collective bargaining agreement.
Offset. In addition, an employer’s obligation to provide 80 hours of SPSL shall be reduced for every hour on or after March 4, 2020 the employer allowed an employee to take paid leave (in an amount equal or greater than as is required within the ordinance) for the reasons covered by the ordinance or in response to an employee’s inability to work due to COVID-19.
Consequences for Failure to Comply. Employees claiming violation of this article can bring an action in court to seek reinstatement, back pay, SPSL unlawfully withheld, and other legal or equitable relief. If an employee is the prevailing party, the court may award reasonable attorneys’ fees to the employee.
Potential Los Angeles County Order. Employers should also note that the County of Los Angeles is currently considering enacting a COVID-19 related supplemental paid leave requirement.
Grocery, Drug Retail, and Food Delivery Worker Scheduling Order
Summary. This ordinance (amended by the Mayor’s order) requires grocery retail stores, pharmacies, and food delivery platforms (as defined) to permit employee schedule change requests related to childcare, illness, or COVID-19. It also requires that extra work in grocery or drug retail stores must first be offered to current employees over hiring a new employee or contractor, if the current employee is qualified and the extra work will not result in premium pay.
Employer Requirements. The new order is effective April 10, 2020 and will remain in effect until the Mayor or the Governor lifts the state of emergency, whichever occurs later.
The order applies to grocery retail stores that primarily sell food or household goods and drug retail stores that sell medicines and miscellaneous items within the City of Los Angeles. It also applies to food delivery platforms (online businesses) that arrange for delivery within the City.
The order mandates that grocery and drug retail store employers must approve employee requests to change their work schedules (1) to provide daycare for their children, (2) to care for sick family or household members, or (3) if the employee is ill, has COVID-19 symptoms, or suspects exposure to COVID-19. It also mandates that food delivery platforms allow employees to decline orders without negative repercussions under the same three circumstances.
Additionally, grocery and drug retail store employers must first offer work to current employees over hiring a new employee, using contract or staffing agency workers, or independent contractors if: (a) the current employee is qualified for the work, and (b) the extra work will not result in overtime or other premium pay.
For food delivery platforms, workers must be offered a “no contact” delivery method, along with written guidance on how to safely make no contact delivery.
Potential Impacts on Contract Laborers. The order’s definition of “employee” includes workers who “shop or pick-up groceries and other food orders from a grocery retail store, restaurant, or other retail food facility for the purposes of delivering the items to a consumer” (i.e. individuals who are often independent contractors). However, the order states that workers are presumed to be employees and that employers have the burden to demonstrate otherwise. Covered entities should consider that there may be little impact on food delivery workers who are treated as independent contractors as many platforms allow independent contractors to decline orders for any reason or no reason without negative repercussions.
Enforcement. Retaliation against a worker for asserting any of the aforementioned rights is prohibited and covered workers can file a lawsuit and obtain reinstatement, back pay, and reasonable attorneys’ fees and costs if the worker prevails.
The Worker Protection Order
The Worker Protection Order is the third order issued by Mayor Garcetti on April 7, 2020.
Mandatory Face Coverings for All Individuals Visiting or Working for Essential Retail Stores. Effective April 10, 2020, the City of Los Angeles requires all employees, third-party workers, and others performing work or services at certain Essential Businesses to wear non-medical grade face coverings over their noses and mouths while performing their work. The Essential Businesses subject to the mandate include:
Grocery stores, water retailers, farm stands, and other establishments engaged in the selling of food and essential household consumer products;
Stores selling pet food and medication supply (but not grooming and training);
Organizations and businesses that provide food, social services and other necessities of life for economically disadvantaged or otherwise needy individuals;
Hardware and building supply stores, day labor centers, and nurseries;
Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home works and morticians, moving services, HVAC installers, carpenters, day laborers, landscapers, gardeners, property managers and leasing agents, and private security personnel;
Laundromats, dry cleaners, and laundry service providers;
Restaurants and retail food facilities that prepare and offer food to customers through delivery, pick-up, or drive through only.
Individuals and businesses that ship or deliver groceries, food, beverages or goods directly to residences or businesses;
Taxis, ride sharing services, car rental companies, and other private transportation services;
Hotels, motels, and shared rental units.
To better protect these essential, non-medical workers, all individuals visiting the above identified Essential Businesses are also ordered to wear face coverings. Businesses subject to the Order retain the discretion to refuse admission or service to any customer or visitor who fails to comply with the face covering requirement.
Workers Must Regularly Wash Reusable Face Coverings. Under the Order, all essential, non-medical workers required to wear these face coverings must wash any reusable face coverings frequently, at least once a day. Any single use face coverings must be properly discarded into trash receptacles.
Employers Must Provide Face Coverings and Allow Hand Washing Breaks Every 30 Minutes. Employers of the enumerated Essential Businesses must, at the employers’ expense, provide non-medical grade face coverings to their employees. The face coverings can be fabric coverings such as scarves and bandanas. Additionally, all such employers must allow their employees to take breaks to wash their hands at least every 30 minutes. Lastly, the Order requires these employers to provide their employees access to clean and sanitary restrooms that are stocked with necessary cleaning products or sanitizing agents required to observe the hand sanitation protocols recommended by the Los Angeles County Department of Public Health. Employers must also implement social distancing measures for customers, visitors, and employees that provide a six-foot buffer, to the extent possible, between individuals.
The Worker Protection Order will remain in place until the City declares the local emergency period ends.