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07 Jul

July 2021: Los Angeles Issues New Vaccine Paid Sick Leave*

Posted at

2:15pm

in

Update Applicable to:
All employers in Los Angeles.

What happened?
On June 24, 2021, Mayor Garcetti issued the Vaccine Paid Sick Leave Due to COVID-19 (CVL) Order.

What are the details?
The order, effective immediately, requires all employers to provide covered employees with CVL to receive a COVID-19 vaccine. This also includes the time an employee spends traveling to and from an appointment and the time to recover from vaccination-related side effects that prevent the employee from being able to work or telework.

Employees who are qualified are those who work within the geographic boundaries of Los Angeles for an employer, and who have been employed with the same employer for 60 days. A collective bargaining agreement (CBA) in place on June 24, 2021, may supersede the CVL Order if it contains provisions providing CVL. If that CBA expires or is open for renegotiation, compliance with the CVL Order can be waived if the waiver is explicitly set forth by the CBA in clear and unambiguous terms. If the CBA does not address CVL, an employer must comply with the CVL Order unless and until the CBA is amended.

The CVL Order is retroactive to January 1, 2021. Qualified employees who on or after January 1, 2021, took leave that would have been qualified leave for the CVL Order and was paid less than what the CVL Order requires can, on or after June 24, 2021, submit a request (written or oral) to receive retroactive payment. Employers must make the payment on or before the payday for the next full pay period after the request has been made. If employers required employees to use leave other than the California Supplemental Paid Sick Leave Due to COVID-19 (SPSL) or Los Angeles SPSL such as vacation, paid/unpaid time off, other sick leave benefits, then upon an employee’s request the employer must reclassify paid leave taken as CVL and restore the 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 pay stub on or before the payday for the next full pay period after the employee’s request.

Employer’s full-time employees must be provided up to four hours of CVL to obtain each vaccine injection, and up to either hours of CVL to recover from any vaccination-related side effects that prevent the employee from working or teleworking. For non-full-time employees, the amount of CVL is prorated based on the average number of hours worked in the 60 days preceding injection or recovery. The following is an example of the calculation included in the order:

  • Employee worked 240 hours in the last 60 days (including non-working days). Dividing 240 by 60 creates a four-hour daily average. Multiplying the daily average by seven produces a 28-hour weekly average. The employee is eligible for 2.8 hours (2 hours 48 minutes) per injection and 5.6 hours (5 hours 36 minutes) for recovery.

Although the CVL Order requires all covered employers to provide the same amount of CVL, employers with 26 or more employees need only provide CVL to employees who have exhausted all available California SPSL or Los Angeles SPSL.

Employers that provide another supplemental benefit that is in addition to any other accrued leave- including but not limited to California PSST and California SPSL, for leave taken on or after January 1, 2021, that is payable for the same reasons as CVL and is paid in an amount that equals or exceeds what the CVL order requires, can count those supplemental benefit hours toward the amount of CVL hours they must provide.

The pay for employees will differ based on if they are exempt or non-exempt. For non-exempt employees, the employers must pay CVL at the highest of the following rates:

  • Employee’s normal rate of pay for the workweek the employee takes leave;
  • L.A. minimum wage; or
  • Employee’s average hourly pay for the preceding 60 days (excluding overtime).

Exempt employees are to be paid in the same manner as they calculate wages for other forms of paid leave. The pay cap under the order is $511 per day (or $255.50 for each 4-hour period) or $1,022 in the aggregate unless the federal government establishes a higher pay amount.

Employers cannot discharge, reduce in compensation, or otherwise discriminate against employees for opposing any practice the order prohibits, requesting to use or actually using CVL, participating in proceedings related to the CVL Order, for seeking to enforce, or otherwise asserting, CVL Order rights. Additionally, employees cannot waive their CVL Order rights except in a CBA.

The order can be read here.

An article on the Order can be read here.

*  Please note that this leave is a new entitlement whereas the “Los Angeles Revises COVID Sick Leave Order” article is discussing an expansion of existing benefits provided by the PSL Program within LA.

What do employers need to do?
Employers should review the law and the above information with their current leave policies to ensure they are in compliance with the order.

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