24/7 Rapid Response - On Call Transportation Attorneys | 24/7 Data Breach Response - breachresponse@lewisbrisbois.com

Legal Alerts

L.A. Employers Subject to New COVID-19 Vaccine Paid Sick Leave Order

Los Angeles, Calif. (July 6, 2021) - On June 24, 2021, City of Los Angeles Mayor Eric Garcetti issued a new order titled Vaccine Paid Sick Leave Due to COVID-19 (the Order). The Order is intended to reduce barriers workers face when seeking the COVID-19 vaccine. It is effective immediately and applies retroactively to January 1, 2021 to afford protections to employees who took leave to receive a COVID-19 vaccine on or after January 1, 2021. It will remain in effect until September 30, 2021, and covers any employees taking the COVID-19 Vaccine Leave (CVL) on that date.

Requirement: This Order applies to all private employers operating in the City of Los Angeles. Note that this applicability differs from the City of Los Angeles’ Revised Supplemental Paid Sick Leave Order (SPSL Order), which applied to employers with either 500 or more employees in the City of Los Angeles or 2,000 or more employees in the United States. The SPSL Order revisions apply prospectively, from June 24, 2021, and the SPSL Order continues to apply until two calendar weeks after the local COVID-19 emergency period ends.

Under the new ordinance, employers are required to provide paid sick leave for absences by employees related to COVID-19. An employee is a person who performs work within the City of Los Angeles and has been with the same employer for 60 days. CVL is time an employee takes off work that is related to the COVID-19 vaccine that must be compensated by the employer. The leave time includes the time an employee spends traveling to and from an appointment, receiving the injection, and recovering from vaccine related side-effects to the extent they prevent the employee from being able to work or telework. An employer must provide the paid CVL upon the employee’s oral or written request . Employers may ask employees to provide written verification of their receipt of the vaccine.

The amount of CVL employers must provide depends on two criteria: 1) whether the employer employs 25 or fewer employees; and 2) whether the employee is full-time or part-time.

Employer with 25 or fewer employees: If an employer employs 25 or fewer employees and a full-time employee requests CVL, the employer must provide up to four hours of CVL for each vaccine injection, and up to eight hours of CVL for recovery from any vaccination-related side effects.

If an employer employs 25 or fewer employees and a part-time employees requests CVL, the amount of CVL provided is prorated based on the average number of hours worked in the 60 days preceding the injection or recovery. The part-time employee is entitled to up to the prorated amount of four hours of CVL per injection and up to the prorated amount of eight hours of CVL to recover from vaccine-related side effects.

For example, if an employee worked 240 hours in the last 60 days (including non-working days), then you would divide 240 hours by 60 days, which equals an average of four hours/day. Multiply this number by seven to get the average number of hours worked in a week – in this case, 28 hours/week. At a prorated rate, the employee is therefore eligible for 2.8 hours (2 hours 48 minutes) per injection and 5.6 hours (5 hours 36 minutes) for recovery.

Employer with more than 25 employees: Labor Code §248.2 and the Mayor’s SPSL Order already require employers with more than 25 employees to provide paid sick leave for COVID-19 qualifying events. The new Los Angeles ordinance expands those protections by providing additional leave to those employees who have already exhausted their allotted leave under Labor Code §248.2 or the SPSL Order. In that case, employers must provide additional leave, in the same amounts as set forth above.

Rate of Pay: Employers must compensate non-exempt employees at the highest of the following: 1) the employee’s normal rate of pay for the workweek in which the employee takes leave; 2) the City of Los Angeles’ $15/hour minimum wage; or 3) the employee’s average hourly pay for the preceding 60 days (excluding overtime).

For exempt employees, employers pay in the same manner as they calculate wages for other forms of paid leave. The Order caps pay at $511/day (or $255.50 for each 4-hour period) or $1,022 in the aggregate, unless the federal government establishes a higher pay amount.

Retroactive Provisions and Pay: Employees who, on or after January 1, 2021, took what would have been qualifying leave under the Order and were paid less than what the Order requires can submit an oral or written request to receive retroactive payment. Employers must then make the payment on or before the payday for the next full pay period. If employers required employees to use leave such as vacation, paid or unpaid time off, or other sick leave benefits, then, upon an employee’s request, they must reclassify paid leave taken as CVL and restore leave the employee took.

Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of CVL, must be reflected on the employee’s paystub on or before the payday for the next full pay period after the employee’s request. However, these requirements do not apply if the employee used leave that qualifies under the Order’s offset provision.

Offset: There is a caveat for employers that already provided supplemental benefits for leave taken on or after January 1, 2021 (in addition to any other accrued leave) that is 1) payable for the same reasons as the Order, and 2) that compensates an employee in an amount equal to or greater than the amount required under the Order. In those cases, an employer may count the hours of the other supplemental benefit toward the total number of hours required by the Order.

Enforcement: The Order provides that employees can bring civil suit for an employer’s failure to provide CVL, or for retaliation due to the employee seeking CVL. Employees may recover economic damages and attorneys’ fees.

Employers with employees who work in the City of Los Angeles should ensure that their policies are in compliance with this new Order. Lewis Brisbois’ Labor & Employment attorneys are available to assist in navigating federal, state, and local orders pertaining to COVID-19. Visit our COVID-19 Response Resource Center for more alerts on the many areas of law impacted by the pandemic.

Author:

Jacqueline Suh, Associate

Editors:

Ashleigh Reif Kasper, Partner

Peter T. Shapiro, Partner

Related Practices


Related Attorneys

Find an Attorney

Each of the firm's offices include partners, associates and a professional staff dedicated to meeting the challenge of providing the firm's clients with extraordinary service.