EMPLOYER GUIDANCE PAID SICK & FAMILY LEAVE
DURING COVID-19 PANDEMIC
While the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) do not apply to employers of 50 or less employees, the Los Angeles Municipal Code (LAMC) Section 187.02 and 187.04 appear to require employers, regardless of employee count, to pay Sick Time Benefits to eligible employees.
Under LAMC 187.04, employees are eligible to employees who work in the City for the same employer for 30 days or more within a year from the commencement of employment.
More significantly, on March 27, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law. The FFCRA appears to apply to private employers with fewer than 500 employees. All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.*
Under the FFCRA, an employee qualifies for emergency paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
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is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
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has been advised by a health care provider to self-quarantine related to COVID-19;
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is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
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is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
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is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19;[1] or
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is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
If the employee falls into any category specified in items 1-3 or 6, the employee is entitled to 2 weeks (80 hours) of paid sick leave at their regular rate of pay.
If the employee falls into category 4, the employee is entitled to 2 weeks (80 hours) of paid sick leave at ⅔ their regular rate of pay.[2]
If the employee falls into category 5, the employee is entitled to 10 additional weeks of paid expanded family and medical leave at ⅔ their regular rate of pay.
New guidance from the Department of Labor, states that enforcement actions against employers for violations of the FFCRA occurring within 30 days of the enactment of the FFCRA, will be stayed if the employer has made reasonable, good faith efforts to comply with the Act (a good faith effort will likely require payment of leave).
On March 18, 2020 the City of Los Angeles Office of Wage Standards, Bureau of Contract Administration issued “Paid Sick Leave and COVID-19”. Under the City’s March 18th order, employers must allow employees covered by LAMC 187 to use accrued Paid Sick Leave in the following situations, which fall under preventive care:
• The employee takes time off work because public health officials or healthcare providers require or recommend an Employee isolate or quarantine to prevent the spread of disease;
• The employee takes time off work because they are 65 or older or have a serious chronic medical condition as described by the Centers for Disease Control;
• The employee takes time off work or loses regular or scheduled work hours because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation or mandate;
• The employee takes time off work to provide care for a family member, by blood or affinity, who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
• The employee takes time off work to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation or mandate that is made to prevent the spread of disease.
More recently, on March 27, 2020, the L.A. City Council voted to increase paid leave an additional 10 days for workers that have fallen ill or need to care for family for workers at businesses with 500 or more employees nationwide. Obviously, the City of Los Angeles’ guidance above is not as demanding on employers under the CFRA, FMLA and/or FFCRA. However, we will note that the FFCRA was only recently enacted and its interpretation and enforcement are fluid. FFCRA does not apparently cover companies with 500 or more employees, but small businesses with less than 50 employees can seek exemption from the federal rules. The regulations under FFCRA that will provide more clarification will not be available until after the Department of Labor releases them in April 2020.[3]
In addition to the logistical, operational and financial ramifications that implementation of COVID-19 policies and laws may entail, employers should be cognizant of the social and cultural impact that their actions towards this emergency may have on their workforce’s morale.
If you have any specific questions that were not addressed in the above topics, please do not hesitate to contact us for further comment at 213-489-9833 or info@jwharrislaw.com.
Stay safe and healthy,
Herbert Hayden, Esq.
OTHER RESOURCES
US. Department of Labor Guidance:
State of California Guidance:
City of Los Angeles Guidance:
[1] small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern
[2] This provision is subject to further advisement by the Department of Labor.
* Small businesses with less than 50 employees may be exempt as described in footnote 1.
[3] See https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave#_ftn4
