As we reported in our previous blog post, the city of San Francisco recently enacted the Public Health Emergency Leave Ordinance (“Ordinance”) which requires certain employers to provide employees with paid leave for specified reasons related to COVID-19. This week, the San Francisco Office of Labor Standards Enforcement issued Implementation Guidance (“Guidance”) regarding the new Ordinance. The Guidance sheds light on important issues such as the scope of the Ordinance, the amount of leave available under the Ordinance, how to calculate rate of pay, and notice requirements under the Ordinance.
Notably, the Guidance reiterates that employers with 500 or more employees must comply with the Ordinance for their covered San Francisco 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 numbers fluctuate, then businesses should calculate business size for the current calendar year based upon the average number of employees per pay period during the preceding calendar year.
The Guidance also notes that covered employees include any person providing labor or services under California Labor Code section 2750.3, including part-time and temporary employees performing “limited work” within the geographic boundaries of the city. Paid leave under the Ordinance is available to such employees regardless of how long they have been employed. The Ordinance also covers undocumented employees, whether or not they are legally authorized to work in the United States. The Ordinance does not, however, apply to workers properly designated as “independent contractors.”
Further, Public Health Emergency Leave must be made available to employees in addition to any paid time off employers offer or provide to employees on or before April 17, 2020. Employers that provide additional paid leave in response to the COVID-19 outbreak, however, are permitted to offset that leave from the requirement, as long as employees are permitted to take the leave on or after February 25, 2020. In such cases, the amount of Public Health Emergency Leave an employer must provide is reduced for every hour of paid leave or paid time off consistent with the Ordinance.
The Guidance states that employers may require employees to comply with reasonable notice procedures, but only when the need for Public Health Emergency Leave is foreseeable. An employer may also require an employee to identify the basis for requesting Public Health Emergency Leave. The Guidance recommends flexibility, however, because such notification requirements may be “unreasonably burdensome.” Further, the Guidance clarifies that employers cannot require employees to do any of the following:
- work a different shift instead of taking leave under the Ordinance;
- Use an alternative school or place of care in the event that such locations are closed;
- Provide a doctor’s note or other documentation when requesting emergency leave;
- Take emergency leave in increments; or
- Find replacement workers to cover their shifts.
Finally, the Guidance makes clear that employers must provide notice to employees in a manner calculated to reach all employees by (1) posting in a conspicuous place at the workplace, (2) notifying employees via electronic communication, and/or (3) posting in a conspicuous place in an Employer’s web-based or app-based platform. Employers must also provide the notice in English, Spanish, Chinese, and any language spoken by at least 5% of the Employees who are, or prior to the Public Health Emergency were, at the workplace or job site.
We will continue to monitor any further developments. Stay tuned for updates.