Being a California employer during the COVID-19 pandemic is overwhelming! Every week brings new COVID-19 developments, and a resulting scramble to digest the latest flood of COVID-19 information. Given the rapidly-changing dynamics, employers must remain constantly vigilant to keep in compliance with federal, state and local laws. The article below addresses a very recent change in the Los Angeles County COVID-19 benefit rules, as well as other cities and counties with independent COVID-19 benefits provisions.
First, some quick history:
The Families First Coronavirus Response Act (FFCRA) and California’s related COVID-19 supplemental paid sick leave law (AB 1867) both expired on December 31, 2020. A few days before the expiration date, on December 27, 2020, the ‘‘Consolidated Appropriations Act, 2021’’ (CAA) was passed.
The CAA grants employers the option of voluntarily continuing to offer FFCRA benefits to otherwise eligible employees from January 1, 2021, through March 31, 2021. It also continues the corresponding tax benefit for employers who opt to continue providing FFCRA. More details about the voluntary FFCRA and tax benefit extension can be found in our article here https://www.lightgablerlaw.com/legal-updates/20/1228/. The IRS FAQs on FFCRA tax benefits can be found here.
In addition to the state and federal COVID-19 benefit laws referenced above, LightGabler has continually cautioned employers to closely monitor local city and county ordinances that could create an additional layer of compliance requirements, depending on a business’s specific location or the location where remote employees might be working.
On January 26, 2021, the County of Los Angeles issued an “urgency ordinance” that amended the original Los Angeles County Supplemental Paid Sick Leave Ordinance (which had expired on December 31, 2021, along with the FFCRA and AB 1867). The purpose of this urgency amendment was to extend coverage and expand the original ordinance’s coverage to all businesses with locations in any unincorporated areas of Los Angeles County (or employees working in those areas, including remote workers). Although the amended ordinance largely tracks the original ordinance, the question and answer series below may help impacted employers quickly navigate the key points of the amended ordinance:
When is the amended ordinance effective?
The amended ordinance is an urgency measure, meaning that it was effective immediately upon passage (January 26, 2021). Note, however, that even though the amended ordinance was not passed until January 26, 2021, its requirement to provide COVID-19 benefits is retroactive to January 1, 2021. This ensures that there is no gap in coverage between the December 31, 2020, expiration of the original ordinance, and the date the amended ordinance went into effect on January 26, 2021.
How long will the amended ordinance be in effect?
The amended ordinance will “…be in effect until two calendar weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board of Supervisors.”
What businesses are covered by the amended ordinance?
With very few exceptions (noted below), the amended ordinance covers all employers with businesses located in an unincorporated area of Los Angeles County.
How do I know if I am in an unincorporated area of Los Angeles County?
You can find that information on the Los Angeles County website by clicking here.
Is any business excluded from coverage?
Yes. The amended ordinance does not apply to federal, state, or local government agencies.
Is there an employee count threshold?
No. This amended ordinance, unlike the original ordinance, is applicable to both large and small employers. Recall that the original ordinance applied only to companies with 500 or more employees (and certain large national employers). Under the amended ordinance, there is no employee count threshold.
Which employees are covered?
Any employee that performs any work within the unincorporated areas of Los Angeles County. Employers with physical locations outside of Los Angeles County, but who have remote workers working in unincorporated areas of Los Angeles County, should pay careful attention to this amendment.
Is any employee excluded from coverage?
Yes. The amended ordinance does not apply to “emergency responders” (peace officers, firefighters, EMTs, paramedics, etc.), or to anyone defined by the federal Department of Labor as “Health Care Providers.” You can find information on the DOL’s Health Care Provider definition in our legal updates here.
If the amended ordinance applies to my business or my employees, how much supplemental COVID-19 sick leave must be offered?
Full-time employees (defined as, “An Employee who works at least forty (40) hours per week or is classified as a full-time Employee by the Employer”) are entitled to “…receive no more than eighty (80) hours of Supplemental Paid Sick Leave under either the Families First Act…” or the amended ordinance. The amount of sick leave pay owed is calculated based on, “…the employee’s highest average two week pay over the period of January 1, 2020 through the effective date…” of the amended ordinance.
Part-time or variable hour employees (defined as “An Employee who works less than forty (40) hours per week and is not classified as a full-time Employee by the Employer”) are entitled to “…receive an amount no greater than the Employee's average two week pay over the period of January 1, 2020 through the effective date of this Chapter.”
Note that any amount of supplemental paid sick leave offered under this amended ordinance, “…must be reduced by the supplemental paid sick leave paid under the Families First Act,” or under the original ordinance. This means that that an employee who has previously used up their maximum hours of supplemental paid sick leave either under the original ordinance, or under the FFCRA, is “not eligible for any additional allotment of Supplemental Paid Sick Leave after that date” under the amended ordinance.
Is there a daily or total cap on the amount of supplemental paid sick leave (like there is under the FFCRA)?
Yes. Just like the FFCRA, there is a daily cap of $511, and a total cap of $5,110 in the aggregate.
For what reasons can covered employees take supplemental paid sick leave under the amended ordinance?
The amended ordinance did not change the reasons for which an employee can take supplemental paid sick leave: “(1) 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 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); (3) The Employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or (4) 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 child care provider ceases operations in response to a public health or other public official's recommendation.”
Do other cities or counties have similar COVID-19 supplemental paid sick leave ordinances?
Yes. There are several cities and counties that have established their own local COVID-19 paid sick leave rules, including:
As you can see, there is a complex patchwork of COVID-19 rules, regulations and ordinances. Employers are encouraged to closely monitor all federal, state, and local city and county ordinances to understand the full scope of their obligations.
For further information regarding COVID-19 questions, or other employment law issues, contact the attorneys at LightGabler.