Employment Law Alert: San Francisco Public Health Emergency Leave

On April 17, 2020, San Francisco enacted a Public Health Emergency Leave Ordinance (“PHELO”) to require private employers with 500 or more employees to provide up to 80 hours of paid leave to employees during the public health emergency related to COVID-19. The San Francisco Office of Labor Standards Enforcement (OLSE) has published  Frequently Asked Questions (“OLSE FAQs”) regarding the ordinance and a required notice that must be posted.

Effective Dates 

The PHELO is effective April 17, 2020, and will expire on June 17, 2020 unless reenacted by the Board of Supervisors, or upon the termination of the public health emergency, whichever occurs first.

Covered Employers

 Employers with 500 or more employees worldwide must comply with the Ordinance for their covered San Francisco employees. Employers that are covered under the federal Family First Coronavirus Response Act are not covered by the Ordinance. For more comprehensive information concerning the Family First Coronavirus Response Act, you can watch our March 27, 2020 on-demand webinar, and read our comprehensive articleon the law.

Covered Employees

The PHELO covers any person providing labor or services for remuneration who is an employee under California Labor Code Section 2750.3 (using California’s new Assembly Bill 5 standard), including part-time and temporary employees who perform work as an employee within the geographic boundaries of San Francisco. The Ordinance specifically includes within its coverage employees who perform limited work within the City if the individual would be an employee under rules governing the San Francisco Paid Sick Leave Ordinance (i.e., employees who live in San Francisco and perform work for an employer from home, and employees who work outside San Francisco but stop in the City to work). These individuals are considered employees for all hours they perform work within San Francisco, so long as they perform 56 or more hours of work in San Francisco within a calendar year.

Requirements to Provide Public Health Emergency Leave

The PHELO requires employers to provide Public Health Emergency Leave in addition to any paid time off benefits, including paid sick leave under the San Francisco Paid Sick Leave Ordinance, that the employer offered or provided to employees on or before April 17, 2020. However, employers that voluntarily provided additional paid leave since February 25, 2020 in response to the COVID-19 outbreak (not including previously accrued hours), may count that time off toward the required Public Health Emergency Leave. Importantly, an employer may not change any paid time off policies on or after April 17, 2020 except to provide additional paid leave. Similarly, employers that provide paid leave under the California Supplemental Paid Sick Leave Executive Order (applicable to food sector workers) are permitted to offset that leave from the requirement under the PHELO.

Employees who were full-time employees as of February 25, 2020 are entitled to 80 hours of Public Health Emergency Leave. Employees who were part-time employees as of February 25, 2020 are entitled to the number of hours of Public Health Emergency Leave equal to the average number of hours over a two-week period the employee was scheduled to work over the previous six months ending on February 25, 2020, including hours for which the employee took leave of any type. For employees hired after February 25, 2020, the number of hours of Public Health Emergency Leave to which they are entitled is equal to the number of hours that the employee worked, on average, over a two-week period between the date of hire and the date upon which the leave is taken, including hours for which the employee took leave of any type.

Any employee may use Public Health Emergency Leave to the extent that the employee is unable to work (either at their customary place of work or telework) due to any of the following: (1)   The employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19, including but not limited to Governor Gavin Newsom’s Executive Order, local Bay Area shelter-in-place orders, and government orders recommending or requiring additional restrictions for vulnerable or high-risk populations. Vulnerable populations include people who are 60 years old and older; people with certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems; and, people who are pregnant or were pregnant in the last two weeks. (2)   The employee has been advised by a health care provider to self-quarantine. (3)  The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis. (4)  The employee is caring for a family member who is subject to an order as described in (1) above, has been advised as described in (2) above, or is experiencing symptoms as described in (3) above. “Family member” has the same definition as under the San Francisco Paid Sick Leave Ordinance, and means a child, parent, legal guardian or ward, sibling, grandparent, grandchild, spouse, registered domestic partner, or designated person. (5)  The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the public health emergency. (6)  The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the federal Families First Coronavirus Response Act, by the United States Secretary of Health and Human Services.

Employers of employees who are health care providers or emergency responders may elect to limit an employee’s use of Public Health Emergency Leave to where the employee has been advised by a health care provider to self-quarantine or is experiencing symptoms of COVID-19. See OLSE FAQ #24. 

Public Health Emergency Leave must be made available for immediate use, regardless of how long the employee has been employed with the employer. Public Health Emergency Leave may be taken regardless of whether and when the employee is scheduled to work, provided that the total number of hours of leave taken in a week may not exceed the average number of hours over a one-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took leave of any type. Significantly, businesses that have temporarily closed or suspended operations are covered by the Ordinance. See OLSE FAQ #8. In addition, the Ordinance requires employers to permit employees to use Public Health Emergency Leave for hours they are not scheduled to work. See OLSE FAQ #26. 

An employer may require employees to follow reasonable notice procedures in order to use Public Health Emergency Leave, but only when the need for leave is foreseeable. An employer may require an employee to identify the basis for requesting Public Health Emergency Leave, but may not require the disclosure of health information or other documentation (including a doctor’s note) for absences.   An employer may not require an employee to take Public Health Emergency Leave in increments of more than one hour. An employer also cannot require an employee to search for or find a replacement worker as a condition of using Public Health Emergency Leave.

Public Health Emergency Leave must be paid at the same rates as sick leave under the San Francisco Paid Sick Leave Ordinance. Specifically, non-exempt employees must be paid for emergency leave at either: (a) the “regular rate” of pay for the workweek (i.e., the same rate that would be used to calculate any overtime pay due, before applying the overtime premium multiplier); or (b) a rate computed by dividing total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. Employers will be required to pay exempt employees for emergency leave in the same manner used for other forms of paid leave. Notably, unlike the federal Family First Coronavirus Response Act, there are no payment caps or tax credits available under the Ordinance.

Employees may use Public Health Emergency Leave before using other accrued paid time off. An employee may voluntarily choose, but an employer may not require an employee, to use other accrued paid time off before using Public Health Emergency Leave. Upon separation from employment, an employer is no longer obligated to provide or pay for any Public Health Emergency Leave not used prior to separation.

Non-Retaliation

The Ordinance makes it unlawful for an employer to discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or retaliate against an employee for exercising rights under the Ordinance.

Posting, Notice and Recordkeeping Requirements

Employers are required to post a notice of rights under the Ordinance. Employers must provide the notice to employees in a manner calculated to reach all employees: by posting in a conspicuous place at the workplace, via electronic communication, and/or by posting in a conspicuous place in an employer’s web-based or app-based platform. Employers are required to provide the notice in English, Spanish, Chinese, and any language spoken by at least 5% of the employees. In addition, on each pay day, employers are required to provide written notice that sets forth the amount of Public Health Emergency Leave that is available to the employee on either the employee’s itemized wage statement or in a separate writing. Employers must retain records for at least four years documenting work schedules, hours worked, and Public Health Emergency Leave taken by employees. In the case of exempt employees, employers must maintain records of work schedules and days worked, but do not need to maintain records of actual hours worked.

Recommendations

We recommend that employers immediately prepare new policy publications to supplement their employee handbooks to comply with the Ordinance, post the required notices, and ensure that they are providing employees with legally compliant itemized wage statements (or a separate writing) in accordance with the Ordinance.