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LA CITY ISSUES WORKER PROTECTION ORDER

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LA CITY ISSUES TWO NEW ORDERS WORKER PROTECTION ORDER
AND
SUPPLEMENTAL PAID SICK LEAVE ORDER
FOR EMPLOYERS OF 500 OR MORE EMPLOYEES

In our continuing effort to provide the latest information and resources relating to the COVID-19 pandemic, the below newsletter details two new Orders signed by Los Angeles City Mayor Eric Garcetti, one of which becomes effective on Friday, April 10th and the other becomes effective immediately.

LOS ANGELES CITY MAYOR ORDERS FACIAL COVERINGS AND OTHER WORKPLACE MANDATES

On April 7, 2020 Mayor Garcetti issued the Worker Protection Order which becomes effective at 12:01 am. on Friday April 10, 2020 until the end of the local emergency period and shall extend through May 1, 2020 but is subject to extension.

This Order specifically addresses employees in non-medical essential businesses such as grocery and retail stores, pharmacies and other businesses meeting the needs of the community, whose employees face a substantial risk of exposure by going to work and as such are now required to wear “non-medical grade face coverings while performing their work”.

Click here or below for a full copy of the Order:

https://www.lamayor.org/sites/g/files/wph446/f/page/file/WorkerProtection.pdf

In summary, the Order provides:

  • Employees in non-medical essential businesses as defined in the Order must wear face coverings over their noses and mouths while performing their work. The face coverings need not be medical-grade masks or N95 respirators, but rather, fabric coverings, such as scarves and bandanas.
  • All essential, non-medical workers required to wear these face coverings must frequently (at least once a day) wash any reusable face coverings, for the health and safety of themselves and others.
  • Single-use face coverings must be properly discarded into trash receptacles.
  • Employees must be permitted to wash their hands at least every 30 minutes.
  • Employers must ensure that their employees have access to clean, sanitary restrooms, stocked with all necessary cleansing products; or sanitizing agents required to observe hand sanitation protocols recommended by the Los Angeles County Department of Public Health, provided at the employer’s expense.
  • Employers must implement social distancing measures for customers, visitors, and employees that provides a six-foot buffer, to the extent possible, between individuals.
  • All customers and visitors of businesses and organizations described in the Order must wear face coverings over their noses and mouths to provide additional protection for employees and customers. The face coverings need not be medical-grade masks or N95 respirators, but can be fabric coverings, such as scarves and bandana coverings.
  • A business owner may refuse admission or service to any individual who fails to wear face coverings as required by this Order.
  • The Order further set forth several recommendations which include:
  • All retail businesses described in the order are encouraged to install plexiglass to separate cashiers and customers at all points of sale.
  • All people are encouraged to wear face coverings over their noses and mouths when they are outside their homes to obtain essential services and goods.

Failure to comply with the Mayor’s Order shall constitute a misdemeanor subject to fines and imprisonment.

The businesses specifically identified in the Order include the following (the paragraph letters correspond to the paragraphs in the Safer at Home Emergency Order):

All workers who work at businesses or perform services that are exempt under Paragraph 5(vii) of the City of Los Angeles Safer At Home Emergency Order, in the following subsections:

b. Grocery stores, water retailers, farm and produce stands, supermarkets, convenience stores, warehouse stores, food banks, certified farmers markets and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet food and medication supply (but not grooming or training), fresh or frozen meats, fish, and poultry, any other household consumer products (such as construction supplies, cleaning and personal care products);

d. Organizations and businesses that provide food, social services and other necessities of life for economically disadvantaged or otherwise needy individuals (including gang prevention and intervention, domestic violence, and homeless services agencies);

h. Hardware and building supply stores, day labor centers, and nurseries;

i. 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, private security personnel;

l. Laundromats, dry cleaners, and laundry service providers;

m. Restaurants and retail food facilities that prepare and offer food to customers, but only via delivery service, to be picked up, or drive-thru;

p. Individuals and businesses that ship or deliver groceries, food, beverages or goods directly to residences or businesses;

q. Taxis, ride sharing services, car rental companies, and other private transportation services;

v. Hotels, motels and shared rental units.

REIMBURSEMENT FOR COSTS REQUIRED 

If an employer is unable to provide the face covering for their employees and the employee provides their own face covering, the employer must reimburse the employee for the costs they incurred in procuring or making their own face covering. This would be a reimbursable expense under the California Labor Code Section 2802.

LOS ANGELES MAYOR ORDERS EMPLOYERS WITH 500 OR MORE EMPLOYEES TO PROVIDE SUPPLEMENTAL PAID SICK LEAVE

On April 7, 2020 Mayor Garcetti issued another order entitled COVID-19 SUPPLEMENTAL PAID SICK LEAVE mandating supplemental paid sick leave for employees working for companies with over 500 employees within the City of Los Angeles or 2000 or more employees throughout the U.S.   This Order becomes effective immediately and shall remain in effect through two calendar weeks after the expiration of the COVID-19 local emergency period.

This Order does not impact smaller business and is intended to fill the gap left by the FFCRA mandating paid sick leave for employers with 500 or fewer employees.

A copy of the full order can be found at: https://www.lamayor.org/COVID19Orders

This Order shall apply to an Employer that has either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.

A. SUPPLEMENTAL PAID SICK LEAVE:

An Employee who has been employed with the same Employer from February 3, 2020 through March 4, 2020, is entitled to supplemental paid sick leave, if an Employee is unable to work or telework, as follows:

  • An Employee who works at least 40 hours per week or is classified as a full-time Employee shall receive 80 hours of supplemental paid sick leave. Supplemental paid sick leave shall be calculated based on an Employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
  • An Employee who works less than 40 hours per week and is not classified as a full-time Employee shall receive supplemental paid sick leave in an amount no greater than the Employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
B.   DEFINITIONS:
  • An “Employee” is one who performs any work within the geographic boundaries of the City for an Employer.
  • An “Employer” is a person or entity, including a corporate officer or executive, who directly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.
C.    AMOUNT OF PAID SICK LEAVE:
  • The supplemental paid sick leave amount paid to an Employee shall not exceed $511 per day and $5,110 in the aggregate. Employees of joint Employers are only entitled to the total aggregate amount of leave specified for Employees of one Employer.
D. EMPLOYEE REQUEST FOR SUPPLEMENTAL PAID SICK LEAVE.

Paid Sick Leave shall be provided upon the oral or written request of an Employee if:

  • The Employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;
  • The Employee takes time off work because 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 takes time off work because the Employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
  • 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 caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation. This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.

An Employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

REDUCTION FOR OTHER LEAVE PROVIDED

An Employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave under this Order shall be reduced for every hour an Employer allowed an Employee to take paid leave in an amount equal to or greater than the requirements in Section II, not including previously accrued hours, on or after March 4, 2020, for any of the reasons described in Paragraph II. A.1-4 or in response to an Employee’s inability to work due to COVID-19.

EXEMPTIONS

There are exemptions in the order for:

A. Emergency and Health Services Personnel which refers to individual specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order and detailed in the Supplemental Paid Sick Leave Order. A health care worker shall encompass individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.

B. Critical Parcel Delivery which refers to an Employer that provides global parcel delivery services which are characterized as an essential Emergency Service vital to the health and safety during this pandemic.

C. Generous Leave. If an Employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the Employer is exempt from any obligation to provide supplemental leave pursuant to this Order for the Employee that received the more generous paid leave.

D. New Business Exemption. This Order exempts new businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020. To qualify, an Employer could not have been in business in the City in the 2018 tax year.

However, the Order provides that the following businesses shall not qualify for this new business exemption: construction businesses as defined in Section 21.30 b.1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code.

E. Government. This Order does not apply to employees of government agencies working within the course and scope of their public service employment.

F. Closed Businesses and Organizations. Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave shall be exempt from the requirements of this Order.

G. Collective Bargaining Agreements.  A CBA in place may supersede the provisions of the Order if it contains a COVID-19 related sick leave provision.

ENFORCEMENT

Employees can bring a civil action in Superior Court of the State of California alleging a violation against their Employer and may be awarded:

  • Reinstatement to the position the Employee was discharged in violation of this Order.
  • Back pay and Supplemental Paid Sick Leave unlawfully withheld, calculated at the Employee’s average rate of pay.
  • Other legal or equitable relief the court may deem appropriate
  • Reasonable attorneys’ fees and costs as part of the costs recoverable.
RETALIATORY ACTION PROHIBITED

Employees are protected from retaliatory action, including termination, reduction in compensation or otherwise discriminatory conduct if they have opposed any practice proscribed by the Order, or for requesting to use or actually using Supplemental Paid Sick Leave under the Order, for participating in proceedings related to this Order, for seeking to enforce his or her rights under this Order by any lawful means, or for otherwise asserting rights under this Order.

NO WAIVER OF RIGHTS

Any waiver by an Employee of any or all of the provisions of this Order shall be deemed contrary to public policy and shall be void and unenforceable.

RULES & REGULATIONS

The Office of Wage Standards (OWS) of the Bureau of Contract Administration shall promulgate Rule and Regulations consistent with this Order which shall be posted on WagesLA.lacity.org and may be relied upon by Employees and Employers to determine their rights and responsibilities under this.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.