San Francisco Employers Face New Paid Sick Leave Requirement

Most employers in the Bay Area now have to start providing paid sick leave to workers when a public health emergency has been declared. The permanent paid public health leave requirement is in addition to San Francisco’s already required paid sick leave law. This new leave requirement went into effect on October 1, 2022. “Proposition G, the Public Health Emergency Leave Ordinance”(PHEL), was approved by San Francisco voters in June.

What is a public health emergency under the San Francisco law?

A public health emergency occurs in 2 instances:

• When a local or state health official has declared an emergency because of an infectious disease
• When the Bay Area Air Quality Management District has declared an air quality emergency.

Covered employers

The law covers private San Francisco businesses with 100 or more employees worldwide.

Covered employees

All employees who perform work inside the the city limits and San Francisco County have coverage from the new leave requirement. Unionized workers covered by bona fide collective bargaining agreements and some non-profits are exempted. Employees can take advantage of the leave immediately without regard to how long they have worked for the employer.

How much leave must be provided?

As of October 1, 2022, employers must provide a maximum of 40 hours of leave through December 31, 2022.

Starting January 1, 2023, employees must provide up to 80 hours of leave per year. There is no accrual requirement. Employers must allocate “public health emergency” leave to each employee every calendar year. Allocation of hours is based on the employee’s work schedule. In general, employers must provide full-time employees or those with a fixed work schedule an amount of leave that is equal to the number of hours the employee regularly works over 2 weeks. If an employee has a fluctuating work schedule, then leave must be provided that is equal to the average number of hours the employee works over two weeks. Leave accrual is different for 2022 than for 2023. Accrual for 2022 is based on one week. As a result, as of October 1, 2022, employers must provide a maximum of 40 hours of leave through December 31, 2022. The public health emergency leave supplements any paid leave the employer already provides. An employee can take advantage of the public health emergency leave before using other paid leave.

Reasons for leave

Employees may use San Francisco public health emergency leave if they are unable to work or telework because the employee:

• Or a family member is unable to work because of the recommendations or requirements of a health order issued because of a public health emergency;
• Or a family member has been advised to quarantine, is experiencing symptoms, or seeks a medical diagnosis or tests positive for a communicable disease associated with the public health emergency;
• Is caring for a family member because their school or place of care has been closed
• Is primarily working outdoors during an air quality emergency, and the employee and has heart or lung disease or respiratory problems, is pregnant, or is at least 60 years old

Leave exceptions

Employees cannot use public health emergency leave in instances where they can telework and teleworking does not increase their exposure to disease or unhealthy air quality.

Rate of pay

Employees taking paid sick leave receive compensation at their regular rate of pay.

An employee’s rate of pay under public health emergency leave is the same rate as that required under San Francisco’s Paid Sick Leave Ordinance. Employees taking paid sick leave receive compensation at their regular rate of pay. Employers can’t delay payment for public health emergency leave. Businesses must pay employees for leave at the first available payroll after they take leave.

What is a family member?

Family members under San Francisco’s public health emergency leave law has the same definition as that found under San Francisco’s paid sick leave ordinance. A qualified family member includes:

• Spouse or registered domestic partner
• Child or ward
• Parent or legal guardian
• Sibling
• Grandchild
• Grandparent
• Designated person

No carryover

Unused public health emergency leave does not carry over to the next year.

Replacement worker/medical documentation

Employees don’t have to find a replacement worker to take their place while out on leave. Employers may require a doctor’s note in certain instances.

No retaliation

Retaliation is prohibited.

Recordkeeping

Employers must keep records related to use of the public health emergency leave for 4 years.

Enforcement

Employers who fail to comply with the city law are subject to administrative citations, penalties, and civil actions.

Notice requirement

Employers must provide written notice to employees in English, Spanish, Chinese, Filipino, and any other language spoken by more than 5% of the San Francisco workforce. They must also must post the notice in a conspicuous place at workplaces or job sites where employees work. Notice can also be provided via text, email, and/or posting in a conspicuous place on the employer’s website or app. The Office of Labor Standards Enforcement will prepare and provide the notice. Similar to the state requirement for paid sick leave, employers must list available public health emergency leave hours on workers’ paystubs.

Leave requirements in California

California and many of its cities have taken a strong stance on paid sick and family leave. There is a state requirement for paid sick leave and many Golden State municipalities also have their own leave laws in place. San Francisco employers are already under an obligation to provide paid sick leave. Employers must provide 1 hour of paid sick leave to every employee who works full-time or part-time in San Francisco. The paid sick leave is capped at 40 hours a year for smaller employers and 72 hours a year for larger employers. The requirement has been in place since 2007. The state of California also has employer paid sick leave requirements. All California employers must provide 1 hour of paid sick leave for every 30 hours worked to full-time, part-time and temporary workers, up to 48 hours.

Other changes affecting San Francisco employers

San Francisco lawmakers also recently updated another one of their laws — the Family Friendly Workplace Ordinance (FFWO). The FFWO protects employees who act as caregivers for family members. Employers with 20 or more employees must comply. The FFWO provides employees the right to request flexible or predictable work arrangements so they can fulfill caregiving responsibilities. The law has been around since 2014. Several changes to the law went into effect in July 2022:

• Similar to that found under the Americans with Disabilities Act (ADA), the FFWO now requires that employers engage in “a good faith interactive process” to find a mutually agreeable flexible or predictable working arrangement
• Employees can ask for reconsideration if a request for a flexible or predictable working arrangement has been rejected
• Employees can maintain a flexible or predictable working arrangement unless the arrangement subjects the employer to “undue hardship.” This is similar to the federal ADA where an employer can challenge a disabled worker’s or job applicant’s request for a reasonable accommodation on the basis that the accommodation would cause an undue hardship. Employers acting under the San Francisco law can claim undue hardship based on “identifiable costs” directly caused by the work arrangement and detrimental impact on ability to meet customer or client demands and inability to organize work among other employees, among other things.

How San Francisco's new law can impact other areas

With the declaration of the coronavirus as a global pandemic, public health emergency leave took on greater importance. When the COVID-19 supplemental paid sick leave laws approved by many jurisdictions expired, existing permanent sick leave laws were amended to add public health emergencies as a permissible reason for leave. San Francisco has “bucked that trend” somewhat by enacting a standalone law that supplements an existing sick leave requirement. Employers should be mindful that developments in San Francisco and California could foreshadow developments in other states.