On June 24th, the City of Los Angeles issued an Emergency Order providing COVID-19 Vaccine Paid Sick Leave through September 30th. The new paid leave provides up to 4 hours of paid leave per vaccination injection and up to 8 hours to recover from any vaccination-related side effects.
The Order is now the third COVID-19 vaccine paid leave covering Los Angeles area employers – coming on the heels of the County of Los Angeles’ COVID-19 Vaccine Leave and California’s Supplemental Paid Sick Leave (“SPSL”). However, the City’s vaccine paid leave covers employees working within the City of Los Angeles whereas the County’s leave only covered employees in the unincorporated areas of Los Angeles County. Moreover, unlike the SPSL, the City’s vaccine paid leave also covers employers with fewer than 25 employees. Like its County of Los Angeles counterpart, the City’s COVID-19 Vaccine Paid Leave is also retroactive to January 1, 2021.
Effective Period. The paid leave is in effect until September 30, 2021.
Eligible Employees. Employees are eligible for the paid leave if they perform work within the geographic boundaries of the City of Los Angeles and have been employed by the same employer for 60 days.
Amount of Leave. Employers with 25 or fewer employees must provide up to 4 hours of paid leave to full-time employees to obtain each injection and up to 8 hours of leave to recover from any vaccination-related side effects. Part-time employees are entitled to a prorated amount of leave based on their average number of hours worked in the 60 days preceding the injection.
Employers with 26 or more employees are only required to provide the paid leave to employees who have exhausted their leave under California’s SPSL and/or the City of Los Angeles’ Supplemental Paid Sick Leave.
Rate of Pay. For non-exempt employees, the rate of pay is calculated at the highest of City minimum wage, the normal rate of pay for the workweek in which leave is taken, and the average hourly pay for the preceding 60 days (not including overtime). For exempt employees, the rate of pay is calculated in the same manner as the employer calculates wages for other forms of paid leave time. The pay is capped $511 per day and $1,022 in the aggregate.
Verification. Employers are permitted to ask employees to provide written verification of receipt of a COVID-19 vaccine to receive payment for the leave.
Relationship with Other Leave. The paid leave is in addition to any other paid leave available to an employee. An employer cannot require an employee to use other paid or unpaid leave prior to using the vaccine paid sick leave.
Offset. If an employer provides another supplemental benefit that is in addition to any other accrued leave – such as California’s SPSL – that is taken on or after January 1, 2021, provides the same amount of pay and is provided for the same reasons, then the employer may count those hours toward the total amount of vaccine paid sick leave owed.
Retroactive. The paid leave is retroactive to January 1, 2021. Thus, an employer must provide retroactive paid leave to employees who took time off work to receive a COVID-19 vaccination or recover from vaccination side effects upon request. Moreover, if an employee took non-COVID-19 paid leave to receive or recover from a COVID-19 vaccination, such as vacation, sick leave benefits, or paid or unpaid time off, then the employer must reclassify the leave taken as COVID-19 Vaccine Leave and restore the leave taken by the employee under the different category of leave. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of COVID-19 Vaccine, Paid Sick Leave, must be reflected on the employee’s wage statement on or before the payday for the next full pay period after the oral or written request of the employee. Retroactivity is not automatic. The employee must make an oral or written request to the employer.
No Retaliation. An employer may not retaliate against any person seeking to enforce his or her rights to COVID-19 Vaccine Paid Sick Leave.
Union Contract Exemption. The requirements of the COVID-19 Vaccine Paid Sick Leave may be waived via clear and unambiguous terms in a collective bargaining agreement.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP
