San Francisco Mandates COVID-19 Public Health Emergency Leave For Employers with 500 or More Employees

April 21, 2020
On April 17, 2020, San Francisco Mayor London Breed signed the Public Health Emergency Leave Ordinance to provide paid leave to workers affected by COVID-19 (the “Ordinance”).  The Ordinance provides relief to workers excluded from the leave provisions of the federal Families First Coronavirus Response Act (the “FFCRA”) by extending paid leave to employees in San Francisco who are employed by businesses with 500 or more employees worldwide.  The San Francisco Office of Labor Standards Enforcement published Implementation Guidance to help employers and employees understand their responsibilities and rights under the Ordinance. 
  • Covered Employees.  The Ordinance defines “employee” broadly to include any person providing labor or services for remuneration, including a part-time and temporary employee, who performs work as an employee within the geographic boundaries of the City and County of San Francisco.  This includes an employee who performs 56 or more hours of work in San Francisco within a calendar year and (i) lives in San Francisco and performs work for an employer from home, including telecommuting or (ii) travels through San Francisco and stops in the City to work (for example, to make pickups or deliveries).  The Ordinance does not apply to independent contractors.
    The Ordinance mandates that Public Health Emergency Leave be made available for immediate use regardless of (i) how long an employee has been employed by the employer, (ii) the employee’s status as full-time, part-time, permanent, temporary, seasonal, salaried, paid by commission, or any other status or (iii) any other consideration pertaining to the employee.  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.
  • Covered Employers.  An employer is a person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee.  The Ordinance applies to employers with 500 or more employees worldwide.  Employers that are covered by the FFCRA are not covered by the Ordinance.
  • Number of Employees.  For the purpose of calculating employer size, all persons performing work for the employer are counted, whether or not the persons work in San Francisco.  If the number of employees fluctuates above and below 500 over the course of a year, the business size for the current calendar year is calculated based on the average number of employees per pay period during the preceding calendar year.
  • Amount of Public Health Emergency LeaveIf an employee is unable to work, the employee is entitled to leave as follows:
    1. Employees who were full-time employees as of February 25, 2020 are entitled to 80 hours of leave.
    2. Employees who were part-time employees as of February 25, 2020 are entitled to the number of leave hours equal to the average number of hours over a two-week period that 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.
    3. Employees hired after February 25, 2020 are entitled to the number of hours of leave 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.
    4. Employees are not entitled to more than 80 hours of Public Health Emergency Leave.
  • Qualifying Reasons for Public Health Emergency Leave.  The Ordinance provides that an employee may use Public Health Emergency Leave if the employee is unable to work for any of the following reasons:
    1. The employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19, including an employee who is a member of a vulnerable or high-risk population who is unable to work because of recommendations in San Francisco Public Health Orders or any order issued by Governor Newsom or Bay Area jurisdictions;
    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 is seeking a medical diagnosis;
    4. The employee is caring for a family member who is subject to a Federal, State, or local quarantine or isolation order or is experiencing symptoms associated with COVID-19;
    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; or
    6. The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services.
  • Conditions of Taking Leave.  An employer may require the employee to follow reasonable notice procedures in order to use Public Health Emergency Leave, but only when the need for such leave is foreseeable.  Additionally, an employer may require an employee to identify the basis for requiring leave, but may not require the disclosure of health information or other documentation (including but not limited to a doctor’s note).
    An employer may not require, as a condition of an employee’s taking Public Health Emergency Leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on leave.  An employer also may not require that the employee take leave in increments of more than one hour. 
  • Employer Recordkeeping.  Employers must retain records documenting work schedules, hours worked, and Public Health Emergency Leave taken by employees.
  • Employer Offset.  Public Health Emergency Leave must be made available to covered employees in addition to any paid time off that the employer offered or provided to employees on or before the effective date of the Ordinance, provided however that an employer’s obligation to provide Public Health Emergency Leave is reduced for every hour an employer allowed an employee to take paid leave or paid time off consistent with the requirements of the Ordinance, not including previously accrued hours, on or after February 25, 2020, for any of the qualifying reasons set forth above.
  • Retaliatory Action Prohibited.  An employer may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or take adverse action against any person in retaliation for exercising rights protected under the Ordinance.  It is also not permitted for an employer’s absence control policy to count an employee’s use of Public Health Emergency Leave as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.
  • Effective Date.  The law goes into effect immediately.  The Ordinance will expire either 61 days following its enactment (June 17, 2020), unless reenacted, or when the San Francisco Public Health Emergency is terminated, whichever occurs first.
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.

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