• Sasha Struthers

The Leave Law Updates Los Angeles Employers Need to Know- 2021 COVID-19 Laws

California sick leave laws are some of the most complicated in the country, but not as complicated as the sick leave laws Los Angeles employers are faced with. 2020 saw a lot of Federal assistance with the Cares Act giving employees additional sick leave through December 31, 2020 related to COVID-19. California and now Los Angeles have extended those leaves expired under the Federal law and of course sprinkled in a few more leave laws.


I'd err on the side of caution and grant employees CFRA for COVID-19 related illness. Employers should always be more generous with leave than not. I see an increase in lawsuits being filed based on leave violations, especially in light of COVID-19. Below is not an exhaustive list of leaves in California or Los Angeles, but highlight some main ones to consider.


Also, here is a link to Los Angeles County free COVID-19 Testing.


California Family Rights Act (CFRA)

As of January 1, 2021, the CFRA expanded, through SB 1383 now requiring all employers with 5 or more employees, repealing the New Parent Leave Act (NPLA).


Eligibility requirement: (a) 12 months of service with the employer and (b) has 1,250 service (working) hours with employer in the last 12 months.


Limits: Up to 12 weeks of unpaid leave.


Application: (a) Leave to care for child, parent, spouse, registered domestic partner, grandparents, grandchildren, siblings, adult children and parents-in-law with a serious health condition, (b) employee's own serious health condition, (c) baby bonding with newborn, adopted child, or child placed for foster care and (d) qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child or parent in the U.S. Armed Forces.


Other Leave Overlap: The leave allowed up the Federal Family and Medical Leave Act (FMLA) sometimes overlap and sometimes do not, depending on the reason for the leave. So an employee can potentially exercise both CFRA and FMLA leave in the same year.


Family Medical and Leave Act (FMLA)- Federal

FMLA applies to employers with 50 or more employees within 75 miles or 20 consecutive weeks.


Eligibility Requirements: (a) 12 months of service with the employer and (b) has 1,250 service (working) hours with employer in the last 12 months.


Limits: Up to 12 weeks of unpaid leave for reasons (a)-(d) or up to 26 weeks of unpaid leave for reason (e).


Application: (a) the birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; (b) to care for a spouse, son, daughter, or parent who has a serious health condition; (c) for a serious health condition that makes the employee unable to perform the essential functions of his or her job; (d) for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status; and/or (e) to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member.


Other Leave Overlap: The leave allowed up the Federal Family and Medical Leave Act (FMLA) sometimes overlap and sometimes do not, depending on the reason for the leave. So an employee can potentially exercise both CFRA and FMLA leave in the same year.


Pregnancy Disability Leave (PDL)

In California employees who become pregnancy get additional unpaid leave. This law applies to employers with 5 or more employees.


Eligibility Requirements: Employee is disabled by pregnancy, childbirth or related medical conditions.


Application: Employees are allowed to take this leave as a result of becoming pregnant and being rendered disabled or temporarily disabled due to the pregnancy, the childbirth or a related medical condition to the pregnancy and/or child birth.


Limits: Up to 12 weeks of unpaid leave.


Other leave Overlap: Baby bonding leave is usually provided to an employee in addition to PDL.


Supplemental Paid Sick Leave (SPSL)

Now Los Angeles City has extended the SPSL, which extended paid sick leave rights that previously expired on 12/31/2020 to 2 weeks after the local emergency is declared over (which is open ended with no estimated date).


Eligibility Requirements: (a) employee has worked for employer for 60 days and cannot work or telework and (b) employer has either (i) 500 or more employees in the city of Los Angeles or (ii) 2,000 or more employees in the United States.


Limits: Cannot exceed $511 a day or $5,111 in aggregate.


Application: Leave may be used for: (a) 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; (b) time off 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; (c) 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 (d) 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.


Cal/OSHA COVID-19 Emergency Temporary Standards (ETS)

Back in November 2020 Cal/OSHA introduced Exclusion Pay, expiring in October 2021. Recently, guidance on what that pay entails has been brought to light. This trails with the AB 685 law that increased employer obligations to report COVID-19 cases- see my blog here for more info on that.


Definitions

  • Exposed Workplace- any work location, working area or common area accessed by someone who meets the definition of a COVID-19 case during the high-risk period.

  • COVID-19 Case- a person who meets any of the following definitions a person who (1) has a laboratory-confirmed case of COVID-19; (2) are diagnosed with COVID-19 by a licensed health care provider; (3) is under an order to isolate due to COVID-19 by a public health official; or (4) have died due to COVID-19 as determined by a county public health department.

  • High-Risk Exposure Period with Symptoms- starts two days before symptoms first develop and lasts until 10 days after the symptoms first appeared and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.

  • High Risk Exposure Period without Symptoms- starts two days before and ends 10 days after the specimen was collected for their first positive test for COVID-19.

  • COVID-19 Exposure- being within 6 feet of a "COVID-19 case" for a cumulative 15 minutes or more in any 24-hour period within or overlapping with a "high-risk exposure period."

  • Outbreak- (1) Three or more probable or laboratory-confirmed cases of COVID-19 (COVID-10 Case); (2) within a 14-day period; (3) among workers who live in different households; and (4) are not considered close contacts in any other COVID-19 case investigation.

Eligibility Requirements: Employee has been in an exposed workplace and there has been an outbreak. Exposed Employees must be excluded from the workplace and provided Exclusion Pay


Limits: None so far. There is no cap on this pay, but an employer is required to provide at least 10 days of paid leave.


Application: Employers are required to maintain an excluded employee's earnings, salary, seniority, benefits and job.


Exemptions: (a) the employee is unable to work for reasons unrelated to possible COVID-19 transmission or (b) the company demonstrates that the COVID-19 exposure was not work-related. I would be careful in relying on either of these reasons without substantially documentation, which is hard to come by as required documentation is privileged and employees are not necessarily required to turn it over. Again, employers should be more generous than not with leave.


Given how litigious people are in Los Angeles, employers should talk to an attorney about the various layers of sick leave law to avoid potential trap of under providing leave (paid or unpaid).


If you have any employee issues, employment law questions or curiosities piqued by this post feel free to reach out to me. You may contact me by phone at (818) 306-0686 or by email at sasha@struthers.legal


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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.