Ordinances and Executive Orders require paid sick leave, provide additional protections for grocery, drug store, and food delivery employees, and mandatory face make use

Like many other US cities and counties, the City of Los Angeles – the second most populous city in the US and home to four million citizens – has taken decisive action in response to the multiple threats presented by the current COVID-19 (a/k/a novel coronavirus) pandemic.  Some of those actions require that employers in Los Angeles take immediate action.  In this post, we provide a summary of the new requirements, including which employers are covered by the requirements and those employees eligible for certain newly-created benefits.

Supplemental Paid Sick Leave Ordinance

In the wake of the passage of the federal Families First Coronavirus Response Act (FFCRA), the Los Angeles City Council passed a paid sick leave ordinance to require that large employers provide up to an additional eighty (80) hours of supplemental paid sick leave to employees for COVID-19 related reasons.  Unlike the federal FFCRA, which applies only to employers with fewer than 500 employees, the LA ordinance covers employers with 500 or more employees in the City of Los Angeles or 2,000 or more employees nationally.

What Is Required of Employers?

Effective April 10, 2020, covered employers within the City of Los Angeles must provide this additional paid sick leave to employees who are unable to work or telework due to one or more covered reasons 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 supplemental paid sick leave 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 supplemental paid sick leave in an amount not to exceed their average two-week pay over the period of February 3, 2020 through March 4, 2020. Like the FFCRA, supplemental paid sick leave is capped at $511 per day, or $5,110 in aggregate.  Importantly, the right to supplemental leave under the ordinance is independent of rights under the FFCRA or any other applicable city or state leave.

Notably, Los Angeles City employers must provide supplemental paid sick leave under the ordinance upon an employee’s oral or written request alone – a doctor’s note or other medical documentation is not required.

What Are the “Covered Reasons” for Which Supplemental Leave May Be Available?

Covered reasons under the ordinance include:

• 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;

• 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;”

• 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

• 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 (but only if an employee is unable to find a reasonable alternative caregiver).

Are Any Employers Exempt From the Ordinance?

Several categories of employers and/or businesses are excluded from complying with the ordinance.

• Employers of emergency and health services personnel are excluded, including 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), health facilities licensed under California Health & Safety Code Section 1250 and individuals specified in Paragraph 5 of the City’s April 1, 2020 “Safer at Home” Emergency Order.

• Critical parcel delivery services that provide parcel delivery services globally are exempt.

• Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours annually are exempt when the employee has received the more generous paid leave.

• New businesses that began in or relocated to the City of Los Angeles on or after September 4, 2019 through March 4, 2020. (This exemption does not apply to any employer that was in business in the City in the 2018 tax year, to construction businesses or film producers, as those terms are defined by the Los Angeles Municipal Code).

• Employees of government agencies working within the scope of their employment.

• Businesses that were either 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 that provided at least 14 days of leave.

• Employees who are subject to a collective bargaining agreement including an express waiver of supplemental paid sick leave in clear and unambiguous terms are also exempt.

Employers’ Right to Offset Hours

A City employer’s obligation to provide 80 hours of supplemental paid sick leave will be reduced for every hour on or after March 4, 2020 that the employer allowed an employee to take paid leave in an amount equal or greater than required within the ordinance, for covered reasons or in response to an employee’s inability to work due to COVID-19.

Enforcement and Consequences for Noncompliance

Employees claiming violation of this ordinance may bring a private action in state court to seek reinstatement (if they were terminated, retaliated against, or otherwise experienced an adverse employment action), back pay and sick leave benefits unlawfully withheld calculated at the employee’s average rate of pay.  If an employee prevails in such an action, the court may award costs and reasonable attorneys’ fees to the employee.

Additional Protections for Grocery, Drug Retail, and Food Delivery Workers

In a new COVID-19 order issued by Mayor Garcetti, effective April 10, 2020, Los Angeles City employers in the grocery, drug retail/pharmacy, and food delivery industries must permit employee schedule change requests related to childcare, illness, or COVID-19.  The order further requires that extra work in grocery or drug retail stores be offered to current employees first, rather than hiring a new employee or contractor, if: (1) the current employee is qualified; and (2) the extra work will not result in premium pay.

Covered Employer Obligations

 The order applies to grocery stores that primarily sell food and household items and drug stores or pharmacies that sell medicines, prescriptions and miscellaneous items within the City of Los Angeles.  It also applies to food delivery platforms that facilitate deliveries using “gig workers” within the City.

Grocery and drug store employers must approve employee requests to change their work schedules if the request is made for any of the following three reasons:

• for the employee to provide daycare for their child(ren);

• for the employee to care for sick family or household members; or

• if the employee is ill, has COVID-19 symptoms, or suspects exposure to COVID-19.

Additionally, food delivery platforms must allow employees to decline orders without retaliation or other negative repercussions for the same three reasons.

The order goes even further by requiring grocery drug store employers to first offer extra work to current employees before hiring a new employee, using contract or temporary workers, or independent contractors, so long as the current employee is qualified for the extra work and the extra work will not result in overtime or other premium pay.

The order also mandates that food delivery platforms, such as GrubHub, Postmates and Instacart, provide protection from coronavirus exposure to employees by offering a “no contact” delivery method, along with written guidance on how to safely make a “no contact” delivery.

Food Delivery Workers Presumed to Be Employees

Notably, the order’s definition of “employee” includes gig workers.  Specifically, for purposes of the order, “employee” means any worker who “shops or picks up groceries and other food orders from a grocery retail store, restaurant, or other retail food facility for the purpose of delivering the items to a consumer”.  The order expressly states the presumption that covered workers are employees and that the burden to demonstrate otherwise rests squarely on the shoulders of employers.  As a practical matter, the order may have little impact on food delivery workers who are treated as independent contractors because the vast majority of food delivery platforms allow independent contractors to decline orders at their discretion for any reason (or no reason) without any negative consequence.

Retaliation and Enforcement

Consistent with the enforcement mechanisms of other recent COVID-19 related emergency orders issued by Mayor Garcetti, retaliation against a worker for asserting any of the rights provided by this order is prohibited. Covered employers who violate the order, or retaliate against an employee who avails him or herself of its protections, can be sued in state court by the employee.  Covered employees may seek reinstatement, back pay and, if they prevail, reasonable attorneys’ fees and costs.

Required Use of Face Masks

For the third time in a week, Mayor Garcetti issued an emergency public order for the City of Los Angeles in response to the COVID-19 pandemic.  The Worker Protection Order mandates face coverings for essential, non-medical employees and third-party customers alike.

Covered Employers and Individuals

Effective April 10, 2020, all employees, third-party workers, and others performing work or services at “essential businesses” within the City of Los Angeles must wear non-medical grade face coverings.  Compliant face coverings must conceal an individual’s nose and mouth and must be worn at all times that work is being performed.  Essential, non-medical businesses subject to the Worker Protection Order include:

• grocery stores, water retailers, farm stands, and other establishments engaged in the selling of food and essential household consumer products;

• pet supply stores selling pet food and medication (does not include grooming and training service providers);

• any organization or business that provides or serves food, social services and/or other necessities to the economically disadvantaged;

• hardware stores, day labor centers, and nurseries;

• plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, day laborers, landscapers, gardeners, property managers and leasing agents, and private security personnel;

• laundry service providers, including laundromats and drycleaners;

• restaurants and retail food facilities that prepare and serve food to customers through delivery, pick-up, or drive through only (dining room food service remains prohibited);

• businesses or individuals that ship, deliver or otherwise transport food, beverages, groceries or household goods;

• private transportation services, including taxis, ride share services and car rental companies; and

• lodging facilities, such as hotels, motels and shared rental units.

Under the order, reusable face coverings are permitted, but all essential, non-medical workers must wash any reusable face coverings at least once per day.  Single use face coverings must be properly discarded in trash receptacles.

Additionally, to further protect these essential, non-medical workers, all individuals visiting these essential businesses are similarly required to wear face coverings under the order.  Businesses subject to the order have the discretion to refuse admission or service to any person who fails to cover his or her nose and mouth with a mandated face covering.

Covered Employer Obligations

Covered, essential business employers must provide non-medical grade face coverings to their employees, at the employers’ expense.  The face coverings need not be bona fide “masks” – fabric coverings such as scarves and bandanas are compliant.  Covered employees must also allow employees to take frequent breaks to wash their hands, at least every 30 minutes.  The Order further requires covered employers to provide employees access to clean/sanitary restrooms or washing facilities with adequate cleaning and sanitizing agents necessary to observe the hand sanitation protocols recommended by the Los Angeles County Department of Public Health.  Social distancing measures must also be implemented for customers, visitors, and employees providing a minimum of six (6) feet between individuals, to the extent possible.

The City of Los Angeles’ order mirrors similar orders previously in effect in Southern California in San Diego and Riverside Counties requiring employees and visitors of essential, non-medical businesses to wear face coverings. Other cities and counties are likely to follow suit. Despite the mandates in select cities and counties, covered employers should discourage employees from using N-95 or surgical masks.  Given the short supply of these medical grade face coverings, non-medical employers should encourage their preservation for healthcare workers on the front lines.