San Francisco employers will soon be required to comply with an additional Ordinance providing San Francisco-based employees with paid leave during future public health emergencies. In the June 7, 2022 election, San Francisco voters passed Proposition G. It requires employers with 100 or more employees worldwide to provide up to 80 hours of paid public health emergency leave to San Francisco-based employees. The Ordinance will become operative on October 1, 2022.
We previously reported on the San Francisco Public Health Emergency Leave Ordinance related to COVID-19 that was passed in April 2020. After that ordinance was renewed several times, San Francisco’s Proposition G now makes a similar form of public health emergency leave a permanent requirement for San Francisco employers.
Which Employers Are Required to Comply With the Ordinance?
Any employer that employs 100 or more employees worldwide, and employs at least 1 person who performs work in San Francisco, is subject to the Ordinance. As discussed below, only those employees who perform work in San Francisco will be eligible to take leave. Although prior similar ordinances applied to employers with 500 or more employees, this Ordinance will apply to many smaller employers.
Certain non-profit organizations are excluded from the definition of “employer” for purposes of the Ordinance. In addition, it does not apply to employees covered by a bona fide collective bargaining agreement, so long as the Ordinance’s requirements are “expressly waived in the collective bargaining agreement in clear and unambiguous terms.”
Which Employees May Take Public Health Emergency Leave?
In general, an employee is eligible to take leave under the Ordinance if the individual provides labor or services to a covered employer, performs work within the geographic bounds of the City of San Francisco, and meets the definition of “employee” under the Labor Code. Some additional requirements may apply in order to be eligible for certain types of leave, as discussed further below.
When Does the Public Health Emergency Leave Apply?
In general, employees may take leave during a “Public Health Emergency,” which is defined as a local or statewide health emergency related to any contagious, infectious, or communicable disease. In those circumstances, an employee may take leave if they are unable to work for one of the following reasons:
- As a result of the recommendations of a federal, state, or local health order;
- The employee has been advised by a healthcare provider to isolate or quarantine;
- The employee is experiencing symptoms of and seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the Public Health Emergency;
- The employee is caring for a family member who falls into one of the three foregoing categories; or
- The employee is caring for a family member whose school or place of care has closed due to the Public Health Emergency.
For categories 1 and 2, the employee may not use the leave if the employee can telework without increasing their exposure to disease.
Additionally, eligible employees may use Public Health Emergency Leave not only in situations involving, for example, a communicable virus, but they may also use the leave any time a “Spare the Air Alert” is issued. Prompting some criticism, a “Public Health Emergency” also includes an “Air Quality Emergency,” meaning a day when the Bay Area Air Quality Management District issues a Spare the Air Alert. Such alerts are issued when air quality is expected to be unhealthy on a particular day.
Employees who have been diagnosed with heart or lung disease, have respiratory problems, are pregnant, or are age 60 or older, and primarily work outdoors may take leave during an “Air Quality Emergency” (i.e., when a Spare the Air Alert has been issued). If such an employee can telework without increasing their exposure to unhealthy air quality, then they may not utilize the leave.
Making leave available during Spare the Air Alerts may create unique challenges for employers, as such alerts can be issued the morning of the day for which an alert is in effect. In addition, if air quality is forecast to be unhealthy in any of five Bay Area zones, an alert is issued for the entire Bay Area region, meaning that a Spare the Air Alert may or may not accurately reflect the air quality at a particular employer’s worksite.
Note that employers may not require or encourage employees to use other accrued paid leave provided by the employer before using the Public Health Emergency Leave.
How Much Leave Do Employers Need to Provide to Employees?
As an initial matter, employers should note that for the duration of any Public Health Emergency (as defined above), Public Health Emergency Leave must be made available to employees in addition to any paid leave that the employer provides to employees as of the date the Public Health Emergency began.
Employers must allocate leave to employees on October 1, 2022, and January 1 of each year thereafter based on each employee’s individual schedule. Employees who are scheduled to work a full-time, regular or fixed schedule must be allotted the number of hours they regularly work over a two-week period, up to 80 hours. However, from October 1, 2022, to the end of the calendar year, the allocation is the number of hours the employee regularly works over a one-week period, up to 40 hours.
For employees whose number of weekly hours worked varies, employers must allocate the number of hours they work on average over a two-week period during the previous calendar year (or since the employee’s start date if it is after the beginning of the previous calendar year), up to 80 hours. However, from October 1, 2022 to the end of the year, the allocation is the number of hours the employee works on average over a one-week period during the previous calendar year (or since the employee’s start date if it is after the beginning of the previous calendar year), up to 40 hours.
For those employees who were not employed on October 1, 2022 or January 1, as applicable, and were thus not allocated leave, then on the first date of a Public Health Emergency during the employee’s employment, the employer must allocate leave in a manner similar to that described above.
Unused leave allotments do not need to be carried over from year to year. Additionally, employees may take leave in any increment, as an employer may not require, as a condition of taking the leave, that an employee take leave in increments of more than one hour.
Must Employers Provide Public Health Emergency Leave if They Already Offer Similar Leave?
The Ordinance provides for a reduction in the amount of leave allocated in limited circumstances. Specifically, the Ordinance provides for a reduction of the allocation of leave during 2022 in circumstances in which an employer voluntarily extended additional paid leave or paid time off that employees may use for the reasons provided for in the Ordinance. For every hour of such leave that an employee takes after October 1, 2022, an employer may reduce the allocation of Public Health Emergency Leave.
In addition, the Ordinance provides that, during 2022, if the California COVID-19 supplemental paid sick leave requirements are extended beyond September 30, 2022, then an employer may reduce the allocation of Public Health Emergency Leave for every hour an employee takes of such leave.
During 2023 and subsequent years, the Ordinance provides for a similar reduction if the employer is required to provide paid leave or paid time off to address a public health threat.
Finally, the San Francisco Office of Labor Standards Enforcement (“OLSE”) may issue guidelines or rules authorizing “additional circumstances” for an offset. What additional offsets may be provided for, if any, remains to be seen.
How Is the Pay Rate for the Leave Calculated?
Employees must be paid for any Public Health Emergency Leave taken no later than the payday for the next regular payroll period after the leave occurs. For non-exempt employees, an employer may calculate the pay rate (1) using the same method as the regular rate of pay for the workweek in which the leave is used (whether or not the employee works overtime in that workweek); or (2) by dividing the employee’s total wages, not including overtime pay, by the employee’s total hours worked in the full pay periods of the 90 days of employment prior to the leave.
For exempt employees, the leave must be calculated in the same manner as the pay for other forms of paid leave.
Can Medical Documentation Be Required to Take Leave?
Employers may require documentation in limited circumstances. With respect to leave taken for an air quality emergency, an employer may require a doctor’s note or other documentation to confirm that an employee qualifies for such leave (i.e., has a qualifying disease or medical condition, is pregnant, or is age 60 or older). An employer may not otherwise require disclosure of health information in order for an employee to take leave. However, an employer may require all employees to follow reasonable notice procedures when the need for leave is foreseeable.
Do Employers Need to Post a Notice of Employee Rights?
Yes, employers that are subject to the Ordinance must post a notice of employee rights that will be created by the San Francisco OLSE. The notice must be posted in a conspicuous location at any workplace or worksite where employees work. Where “feasible,” employers must provide it to employees via electronic communication, which may include email, text, and/or posting in a conspicuous place on an employer’s “web-based or app-based platform.”
Will the Ordinance Affect Wage Statements or Separate Notices?
Employers that are required to provide notice of the amount of paid sick leave available to employees under California’s Healthy Workplaces, Healthy Families Act of 2014 must also inform employees of the amount of Public Health Emergency Leave that is available for use on the same notice. The notice, required by Section 246 of the California Labor Code, must be on employees’ wage statements or a separate notice issued on the designated pay date. If an employer provides unlimited paid leave or paid time off, then the employer may simply state on the notice or wage statement that the amount of leave available is “unlimited.”
Employers must also retain records documenting the hours worked by employees, and leave taken by employees, for four years. The failure to do so will result in a finding that the employer has violated the Ordinance in any dispute concerning an employee’s entitlement to leave, unless the employer can prove otherwise by clear and convincing evidence.
How Will the Ordinance Be Enforced and What Are the Penalties for Non-Compliance?
The San Francisco OLSE is responsible for enforcing the Ordinance. Any employee may report suspected violations, and the agency may investigate possible violations. If, after such investigation, it is determined that leave was unlawfully withheld, the dollar amount of paid leave withheld from the employee multiplied by 3, or $500, whichever amount is greater, will be awarded as an administrative penalty paid to the employee.
In the event of certain violations, such as retaliation, the agency may also award restitution, including reinstatement and back pay where applicable. For other types of violations, such as the requirement to post a notice of employee rights, the refusal to allow OLSE to access records, or the failure to maintain or retain accurate records, the agency may impose a penalty of $500. The penalty will increase by 50% for each subsequent violation of the same provision by the same employer within a three-year period without any apparent cap. The employer may also be required to reimburse the City for the costs of its investigation and administrative enforcement costs.
In addition to penalties that may be imposed by the agency, the city attorney or any person “aggrieved by a violation” of the Ordinance may bring a civil action for violation of the Ordinance. If the person prevails, they may be awarded all appropriate legal or equitable relief. In addition, the prevailing party in any such action is entitled to attorneys’ fees and costs.
Conclusion and Key Takeaways
Employers that have San Francisco-based employees, and at least 100 employees worldwide, should review, and possibly revise, their leave of absence policies and processes to ensure that they will comply with the Ordinance. To prepare for the Ordinance to take effect on October 1, 2022, employers should also review their wage statements and record keeping policies and revise them if needed. Additionally, employers should prepare to post the required notice once it is published by the San Francisco OLSE. While this article covers many of the central features of the new Ordinance, employers should consult experienced legal counsel regarding how the Ordinance may specifically apply to their business.
Finally, as referenced above, the OLSE is charged with developing rules and issuing guidance to implement the Ordinance. The OLSE will likely issue such guidance in the near future, and employers should monitor such developments.