Certain Employers with San Francisco Employees
July 12, 2022 and October 1, 2022
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The City of San Francisco and its voters passed two new ordinances aimed at helping employees and their families navigate ongoing issues due to the COVID-19 pandemic and working arrangements. The Family Friendly Workplace Ordinance was amended to expand caregiving protections available to employees, and the Public Health Emergency Leave Ordinance creates a permanent leave benefit during a public health emergency. Each ordinance is highlighted as follows.
Family Friendly Workplace Ordinance (FFWO) – Effective: July 12, 2022
Amendments to the existing FFWO provide eligible employees the right to flexible or predictable work arrangements to help with caregiving responsibilities. Employers with 20 or more employees and a physical business location within the geographic boundaries of San Francisco must comply with the requirements as of July 12, 2022.
Eligible Employees. Employees are eligible if they are employed in San Francisco, have been employed for 6 months or more by their current employer, and work at least 8 hours per week on a regular basis. Employees “employed in San Francisco” includes telework. If the employer maintains an office or worksite within San Francisco where an employee may work or is permitted to work and the employee now teleworks, then then that employee is protected by the FFWO.
Caregiving. The original FFWO provided protected caregiving for a child under the age of 18, a person with a serious health condition in a family relationship with the employee, or a parent of the employee who is 65 or older. Now protected caregiving also includes care of any person 65 or older who is in a family relationship with the employee. A family relationship is a relationship where the caregiver and employee are related by blood, legal custody, marriage, or domestic partnership to another person as a spouse, domestic partner, child, parent, sibling, grandchild, or grandparent. Employers can ask for verification only to the extent necessary to establish validity and are required to treat all such information as confidential.
Request Process. An employee must submit a notice in writing that includes a proposed start date for the arrangement, the requested duration, the specifics of the arrangement, and an explanation of how the request is related to caregiving. Employees may have to resubmit the notice if it is insufficient. The employer must respond in writing within 21 calendar days of receiving a completed notice.
An employer’s approval must be in writing containing: an express approval, the specific terms of the arrangement, and the duration with start and end dates. If the employer does not approve, they must initiate a good faith interactive process with the employee to determine a working arrangement that is acceptable for both parties. After a final denial from the employer, an employee may submit a request for reconsideration within 30 calendar days of the employer’s written denial. The employer must meet with the employee to discuss the request within 21 calendar days of receipt and provide a final written decision within 14 calendar days of the meeting.
Exceptions. An employer does not have to provide a flexible or predictable working arrangement if the employer can demonstrate an undue hardship. An undue hardship is a significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
Enforcement. Employer violations of the FFWO may result in the greater of administrative fines of $50 per day or the cost of care incurred by the employee or the person whose rights were violated.
Public Health Emergency Leave Ordinance (PHEL) – Effective: October 1, 2022
The PHEL or Proposition G creates a permanent public health emergency leave, which is in addition to other types of paid leave employers provide to their employees. The PHEL applies to employers with 100 or more total employees, regardless of their location.
Eligible Employee. Employees who work within San Francisco may use leave for themselves or for the care and assistance of a family member. A family member is a child, grandchild, grandparent, parent, sibling, spouse or domestic partner, or a designated person if the employee does not have a spouse or domestic partner.
Covered Use. An eligible employee may use PHEL protected leave if they are unable to work for any of the following reasons: 1) recommendations or requirements of an individual or general federal, state, or local health order; 2) employee has been advised by a healthcare provider to isolate or quarantine; 3) 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; 4) employee is caring for a family member whose school or place of care has been closed or is unavailable due to the public health emergency; or 5) there is an air quality emergency and the employee belongs to a vulnerable population and primarily works outdoors.
Amount of Leave and Administration. On October 1, 2022 and on January 1 of each following year, employers must allocate up to 80 hours of paid leave for public health emergencies. Full-time employees or those on a fixed schedule must receive an amount equal to the number of hours the employee regularly works or takes paid leave over a two-week period. For employees with a variable schedule, the amount should be equal to the average number of hours the employee worked or took paid leave over a two-week period during the previous calendar year or since the employee’s start date. Employers do not have to carry over unused PHEL year to year.
Rate of Pay. Exempt employees are paid PHEL in the same way they receive other forms of paid leave. Non-exempt employees may use either the regular rate for the workweek in which the employee uses PHEL (regardless of overtime) or by dividing total wages by total hours worked in the full pay periods of the 90 days of employment before PHEL use (excluding overtime).
Offset. If an employee uses other employer-provided paid leave or paid time off for a PHEL-covered reason or if the California COVID-19 supplemental paid sick leave requirements are extended beyond September 3, 2022, then the employer may reduce the amount of hours allocated under the PHEL for every hour an employee takes such paid leave or paid time off. If a federal, state, or San Francisco law in 2023 or beyond requires paid leave or paid time off for a public health threat, employers may similarly offset the amount of PHEL required.
Notice, Posting, and Recordkeeping. Employers may require reasonable confirmation that an employee is a member of a vulnerable population but cannot otherwise require employees to disclose health information in order to take PHEL. A city-created posting must be displayed conspicuously and via electronic communication. If employers are required to provide a similar notice under the Healthy Workplaces, Healthy Families Act of 2014, they must include the amount of PHEL available on paystubs or other mandatory notices provided on payday. Documentation of hours worked and PHEL taken must be kept for four years.
Prohibitions and Enforcement. Employers cannot require employees to find a replacement worker to cover their hours nor can they ask employees to use PHEL in increments of more than one hour. If an adverse action is taken against any employee within 90 days of exercising their rights under the PHEL, it is presumed that adverse action is retaliation. For violations of the PHEL, employees may be awarded the greater of the amount of leave withheld multiplied by three or $500. Employees may also receive restitution in the form of reinstatement and back pay in the event of interference, discrimination, retaliation, and absence control policy violations. In addition to the City Attorney’s and the San Francisco Office of Labor Standards Enforcement’s (OLSE) powers of enforcement, employees also have a private right of action for all forms of relief.
- Review the FFWO here and the PHEL here.
- Review and update existing policies for alternative work arrangements and eligible paid leave.
- Display required notices.
- Have appropriate personnel trained on the new requirements.
- Review the San Francisco Office of Labor Standards Enforcement’s website for additional guidance.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase