Los Angeles County Enacts COVID-19 Sick Leave; City Council of Los Angeles Sends Right to Recall Ordinances To The Mayor

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Seyfarth Synopsis: Los Angeles continues to enact local COVID-19 ordinances at the County and City level. On April 28, 2020, the County of Los Angeles passed an ordinance requiring employers with over 500 employees to provide supplemental paid sick leave to certain workers affected by COVID-19. The following day, the Los Angeles City Council passed right to recall ordinances dictating the circumstances under which certain employers must attempt to bring employees back to work. The City ordinances have been sent to the Mayor, who has until May 11, 2020 to sign. The County is slated to consider similar right to recall measures at its upcoming May 12, 2020 meeting.

Los Angeles County Enacts Supplemental COVID-19 Paid Sick Leave

As we previously reported, the Mayor of Los Angeles ordered businesses with over 500 employees within the City or 2,000 employees nation-wide to provide supplemental paid sick leave for certain COVID-19 related absences. Los Angeles County has now adopted a similar rule that affects unincorporated areas within the County.

Covered Employers. Through at least December 31, 2020, the Ordinance requires private employers with 500 or more employees nationwide to provide employees with Supplemental Paid Sick Leave (SPSL) for certain COVID-19 related reasons.

Covered Employees. The ordinance covers persons who perform any work within the geographic boundaries of the County who were employed as of the April 28, 2020 effective date. (The ordinance also states an employer’s obligation to begin providing the leave is March 31, 2020.) Employers may exclude Emergency Responders or Health Care Providers. The ordinance also excludes food sector workers, who are eligible for similar leave through Governor Newsom’s Executive Order N-51-20 (which is discussed here).

Amount of SPSL Required. Employees classified as full time or who work 40 hours a week or more receive 80 hours of SPSL based on their highest average two-week pay between January 1, 2020 and April 28, 2020. Employees who are not classified as full time or work less than 40 hours a week receive SPSL in an amount not greater than their average two-week pay over the same period. SPSL cannot exceed $511 per day or $5,110 in total.

Covered Reasons. SPSL is available upon written request (including text or email) when the employee cannot work or telework because (1) a public health official or healthcare provider requires or recommends the employee self-isolate or quarantine to prevent the spread of COVID-19, (2) 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 or has a health condition such as “heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system”), (3) the employee is caring for a family member who is subject to a federal, state or local quarantine/isolation order related to COVID-19, or has been advised by a health care provider to isolate self-quarantine, or (4) the employee needs time off to care for a family member whose senior care provider, school, or child care provider has ceased operations in response to a public official’s recommendation.

In contrast with the City, the County ordinance permits employers to require documentation for employees to use SPSL.

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 applicable city and state leave. Employers cannot require employees to use other paid or unpaid leave, paid time off, vacation or California Paid Sick Leave, before or in lieu of SPSL.

Exceptions and Offset. SPSL can be waived in a collective bargaining agreement, but only where negotiated by both sides in clear and unambiguous terms.

In addition, the required SPSL can be reduced for every hour on or after March 31, 2020 the employer already allowed an employee to take paid leave for COVID-19 related reasons, but only if that leave was provided above and beyond the employee’s regular or previously accrued leaves (e.g., sick or personal leaves).

Consequences for Failure to Comply. Employees claiming a violation 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.

Los Angeles City Council Passes Right Of Recall and Worker Retention Ordinances

As we previously reported, the Los Angeles City Council voted on several worker protection ordinances in an emergency session on March 27, 2020, but the Worker Retention Ordinance (Article 4-72J-B) and the Right-of-Recall Ordinance (Article 4-72J-A) did not pass as initially drafted. On April 29, 2020, the City Council approved revised versions, and submitted them to the Mayor, who has until May 11, 2020 to sign.

Notable Changes. As revised, the ordinances would apply only to specific sectors: airport businesses, commercial property businesses, event center businesses, and hotel businesses. The amended ordinances also include a safe harbor that gives employers 15 days to cure alleged violations.

COVID-19 Right of Recall (Proposed Article 4-72J-A)

Summary of Rule. The ordinance would require employers to offer, in writing, any new positions that become available to certain “Laid Off Workers.” “Laid Off Workers” are those (1) with six months or more of service with the employer (including vacation/leave time), and (2) who were discharged on or after March 4, 2020, because of lack of business, reduction of workforce, or other economic, non-disciplinary reasons.

Significantly, the ordinance creates a presumption that any worker discharged on or after March 4, 2020 was discharged for a non-disciplinary reason.

Offers must go out to every such worker who is “qualified” for the open position. “Qualified” means the worker (1) held the same or similar position at the same location when they were separated, or (2) is or can be qualified for the position with the same training that would be provided to a new worker. If more than one Laid Off Worker is qualified, priority goes to the worker with longer service in a similar position at the site. Workers have five business days to accept or reject the offer.

Exceptions. The ordinance expressly does not apply to employees who act as managers, supervisors, or confidential employees, or persons whose primary job is “sponsorship sales for an Event Center Employer.” The rules also can be waived in a collective bargaining agreement, but only if negotiated by both sides, explicit, and in clear and unambiguous terms.

Consequences for Failure to Comply. After providing the employer with notice and giving the employer 15 days to cure an alleged violation, a Laid Off Worker can file a lawsuit and obtain reinstatement, back pay (or $1,000, whichever is more), punitive damages, and reasonable attorneys’ fees and costs if the worker prevails.

COVID-19 Citywide Worker Retention Ordinance (Proposed Article 4-72J-B)

Summary of Rule. When selling or transferring a business, the “Incumbent Business” (e.g., the seller) must provide the “Successor Business” (e.g., the buyer) with a list of its workers so that the Successor can give them priority in hiring. For the first six months after the Successor re-opens to the public, it must offer any new positions available at that location by first making written offers to workers on this list.

In addition, for the first 90 days after a Successor hires workers from the list, the Successor cannot discharge these workers without cause. At the end of the 90 days, the Successor must issue a written performance evaluation for each of these workers. For workers with “satisfactory” performance, the Successor must “consider” offering them continued employment.

If, within six months of re-opening, the Successor decides it requires fewer workers than the Incumbent, it must give priority to workers in the same occupational classification with the greatest Length of Service with the Incumbent.

Exceptions. As with the Right of Recall Ordinance, managerial, supervisory, and confidential employees are excluded. The rules also can be waived in a CBA, but only if negotiated by both sides, explicit, and in clear and unambiguous terms.

Consequences for Failure to Comply. After providing notice of an alleged violation and giving the employer 15 days to cure it, a worker can file a lawsuit and obtain reinstatement, front or back pay, lost benefits, and reasonable attorneys’ fees and costs if the worker prevails.

Notice and Records Requirements. The ordinance requires the Incumbent to post notice at the business about the transfer and the Successor to keep it up for six months after reopening. Records of the performance evaluations and offers required by the ordinance must be kept for three years.

Both ordinances prohibit retaliation against workers in connection with their new rights under the ordinances.

The City Council and Mayor are to consider the effectiveness of these ordinances before March 1, 2022 to determine what provisions, if any, are still necessary.