San Francisco Enacts Ordinance Protecting Workers and Applicants from COVID-19-Related Adverse Actions and Discrimination

September 16, 2020
On September 11, 2020, San Francisco enacted the COVID-Related Employment Protections Ordinance (the “Ordinance”) to temporarily protect workers from adverse action and applicants from discrimination if they test positive for COVID-19, are isolating or quarantining, or have previously isolated or quarantined, due to COVID-19 symptoms or exposure. The Ordinance will remain in effect for 60 days, until November 10, 2020, unless it is reenacted by the San Francisco Board of Supervisors.
 
Covered Employers. The Ordinance applies to Employers, defined as any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs, contracts with, or hires a Worker (as defined below), including the City and County of San Francisco (the “City”).
 
Covered Workers. The Ordinance applies to Workers, defined as any person providing labor or services for remuneration within the geographic boundaries of the City who either (1) is an employee under California Labor Code Section 2750.3, as may be amended from time to time, including a part-time, temporary employee, or (2) is an independent contractor or other person who has performed at least 16 hours of labor or services for the applicable Employer, which are provided personally by the individual independent contractor or other person based on the intellectual or manual efforts of the individual rather than the sale of a product.
 
Covered Applicants. The Ordinance also applies to Applicants, defined as a person who has or may apply or otherwise seek to provide labor or services for remuneration as a Worker for an Employer, including an Employer’s former Workers being considered for employment or contracting following a furlough, layoff, or other job separation.
 
Worker Protections
  • Absences and Requests for Time Off. The Ordinance makes it unlawful for an Employer to discharge, threaten to discharge, demote, suspend, discipline, reduce employee benefits, or in any manner discriminate or take adverse action against any Worker who is absent from or unable to work, or who requests time off work, because the Worker tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure, without regard to whether such Worker would otherwise be eligible to take paid or unpaid leave under any Employer benefit program or any other local, state, or federal protection. 
     
  • Counting COVID-Related Absences. The Ordinance makes it unlawful for an Employer to count a Worker’s absence from or inability to work because the Worker tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action, without regard to whether such Worker would otherwise be eligible to take paid or unpaid leave. 
     
  • Workers Who Test Positive. The Ordinance makes it unlawful for an Employer to take any adverse action against any Worker because the Worker tested positive for COVID-19 or is perceived to have been infected with COVID-19, without regard to whether such Worker takes paid or unpaid leave; provided, however, that an Employer shall not allow a Worker who is experiencing any sign or symptom of COVID-19, or who has confirmed or suspected COVID-19 infection, to return to work onsite until the Worker may do so consistent with the Local Health Officer’s return-to-work guidance. 
     
  • Identifying the Basis for an Absence. The Ordinance allows an Employer to require a Worker to identify the general basis for the Worker’s absence from or inability to work, or the Worker’s request to take time off work, but does not allow the Employer to require the disclosure of health information or other documentation (including but not limited to a doctor’s note).
Rebuttable Presumption. The Ordinance creates a rebuttable presumption that an adverse action was taken in violation of the Ordinance when that adverse action was taken against the Worker within 90 days of the Worker’s absence from work or the Worker’s request for time off work because the Worker tested positive for COVID-19 or is isolating or quarantining due to COVID-19 symptoms or exposure. The Employer may rebut the presumption by establishing a basis for the adverse action including, but not limited to, the Worker’s performance or misconduct.

Job Applicant Protections
  • Employment Offers. The Ordinance makes it unlawful for an Employer to rescind an offer to employ or contract with an Applicant, or to make a decision to employ or contract with an Applicant, based in whole or in part on whether an Applicant tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure.
     
  • Reasonable Accommodations. If an Applicant is unable to start work because the Applicant tested positive for COVID-19 or is isolating or quarantining due to COVID-19 symptoms or exposure, an Employer shall reasonably accommodate the Applicant by scheduling a later start date where reasonably feasible.
Retaliation. The Ordinance also makes it unlawful for an Employer (1) to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under the Ordinance, or (2) take any adverse action against any Worker or Applicant in retaliation for exercising rights protected under the Ordinance. These protections also extend to any person who mistakenly but in good faith alleges violations of the Ordinance.
 
Enforcement. Where the Office of Labor Standards Enforcement (the “Agency”) has reason to believe that a violation of the Ordinance has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing. If the Agency finds that a violation has occurred after a full investigation or hearing, it may issue a determination of violation and order any appropriate relief, including the hiring of an Applicant, reinstatement of a Worker, and payment of lost wages to a Worker or Applicant. The Agency may also order the payment of an additional sum as an administrative penalty that does not exceed $1,000 for the Employer’s first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations. For the purpose of this calculation, if multiple Workers or Applicants are impacted by the same violation at the same time, the Agency shall treat the violation as a single violation rather than multiple violations. Finally, the Agency may order the violating Employer to pay to the City an additional amount not to exceed the Agency’s enforcement costs in order to compensate the City for the costs of investigating and remedying the violation.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.