On April 17, 2020, Mayor Breed signed an amended version of the Public Health Emergency Leave ordinance.
In our April 9, 2020, Alert, we analyzed the San Francisco Public Health Emergency Leave ordinance (PHELO), approved unanimously by the San Francisco Board of Supervisors on April 7, which requires private employers with 500 or more employees to provide up to 80 hours of supplemental paid sick leave consistent with the federal Families First Coronavirus Response Act (FFCRA).
On April 17, 2020, Mayor Breed signed an amended version of the PHELO. In addition, the San Francisco Office of Labor Standards Enforcement (OLSE) published a workplace poster, detailed guidance for employers in the form of FAQs (updated April 24, 2020) and a complaint form to be used by employees to address violations of the PHELO. The PHELO became effective on April 17, 2020, and will expire on June 17, 2020, or upon the termination of the COVID-19 public health emergency, whichever occurs first.
The PHELO addresses the FFCRA’s coverage gap by establishing minimum supplemental paid sick leave requirements for private employers with 500 or more employees worldwide, subject to certain limitations applicable to healthcare providers, emergency responders and collectively bargained employees. Exclusions apply for private sector employers at the San Francisco International Airport, private businesses located on “federal enclaves” such as the Presidio, Fort Mason and the Golden Gate National Recreation Area, and individually owned franchises, unless the number of employees across all businesses owned by the franchise owner is equal to at least 500 employees.
All employees who perform work for the employer are counted for the purpose of calculating employer size, whether or not the person works in San Francisco. If the number of employees fluctuates above and below 500 over the course of a year, the average number of employees per pay period during the preceding calendar year is used.
The PHELO covers any person providing labor or services for remuneration who is an employee under California law, including part-time and temporary employees, and performs work within the geographic boundaries of the city of San Francisco. Leave must be made available for immediate use regardless of how long the employee has been employed by the employer, whether or when the employee is scheduled to work and whether or not the employee is legally authorized to work in the United States. The PHELO requirements may be waived through a valid collective bargaining agreement.
The PHELO does not require employers to provide leave to independent contractors. Whether a person is an employee or independent contractor is a fact-specific inquiry determined by a variety of factors.
Leave Amounts and Rate of Pay
Leave is calculated as follows for employees hired on or before February 25, 2020: (1) Full-time employees are entitled to use up to 80 hours of leave; (2) Part-time employees are entitled to use leave in an amount up 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. Employees hired after February 25, 2020, are entitled to leave in amount equal to the number of hours that the employee was scheduled to work, on average, over a two-week period between the date of hire and the date upon which the leave is taken. Employers may limit use of leave such that the combination of employee hours worked and leave in a given workweek does not exceed the average number of hours that the employee was scheduled to work over a one-week period. Employers cannot require that leave be used in increments of more than one hour.
Compensation for leave taken under the PHELO for exempt employees must calculated in the same manner as the employer calculates wages for other forms of paid leave time. The rate of pay for nonexempt employees is determined based on any one of the following methods: (1) the employee’s regular rate of pay for the workweek in which the employee uses the leave; or (2) by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. Tips can be excluded when calculating that rate of pay for tipped employees. In no circumstances may the payment be less than the San Francisco minimum wage ($15.59 per hour). The OLSE has provided guidance for calculating the applicable rate of pay if an employee has two jobs at different pay rates for the same employer, or whose rate of pay fluctuates for the same job.
Permissible Uses of Leave
Employees who are unable to work or telework may use leave in nearly identical circumstances as under the FFCRA. However, coverage is limited to the employee’s own circumstances or for caring for a family member who is: (1) subject to a quarantine or isolation order related to COVID-19; (2) following advice from a healthcare provider to self-quarantine related to COVID-19; (3) experiencing symptoms associated with COVID-19 and seeking a medical diagnosis; or (4) if a family member’s school or place of care has been closed or child care provider is unavailable due to COVID-19. This includes an employee who is a member of a “vulnerable population” who is unable to work due to public health recommendations, or any order issued by Governor Gavin Newsom or Bay Area jurisdictions recommending or requiring additional restrictions for vulnerable or high-risk populations.
Employers of healthcare providers or emergency responders who are unable to work (either at the employee's customary place of work or telework) may limit use of leave to either of the following reasons: (1) the employee has been advised by a healthcare provider to self-quarantine; or (2) is experiencing symptoms associated with COVID-19, seeking a medical diagnosis and does not meet the Centers for Disease Control and Prevention COVID-19 criteria for returning to work.
Interaction with Other Leave Laws and Policies
Leave under the PHELO shall be made available to employees in addition to any paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance, that the employer offered or provided to employees on or before April 17, 2020.
However, an employer’s obligation to provide leave under the PHELO is reduced for every hour an employer allowed an employee to take paid leave or paid time off, consistent with the requirements of the PHELO, on or after February 25, 2020. In addition, essential food sector employers that have already provided leave under California’s COVID-19 Supplemental Paid Sick Leave Law (enacted on April 16, 2020) would not have to provide additional leave under the PHELO. See our April 20 Alert analyzing California’s COVID-19 Supplemental Paid Sick Leave Law.
Employers may not change any paid time off policies on or after April 17, 2020, except to provide additional paid leave. In addition, except for certain collectively bargained employees, employers may not provide bonuses or raise employee wages in lieu of providing leave under the PHELO. Employees and employers may agree to a schedule change in lieu of the employee using leave under the PHELO, and employees may choose to use an alternative school or place of care for a family member in lieu of using leave under the PHELO, but employers may not require an employee to do so.
Leave Requests and Verification
Employers may require employees to comply with reasonable notice procedures, but only when the need for leave is foreseeable and would not be unduly burdensome. While employers may require an employee to identify the basis for requesting emergency leave, it may not require the disclosure of health information or other documentation for covered absences, such as a doctor’s note or letter from a child care facility. Finally, an employer may not require, as a condition of an employee’s taking leave under the PHELO, that the employee search for or find a replacement worker to cover the hours during which the employee is on leave.
Separation of Employment
Employers are not obligated to provide or pay for any leave under the PHELO that is not used by the employee prior to separation. If, however, an employee separates and is rehired by the employer within one year from the date of separation, unused PHELO leave must be reinstated. The OLSE guidance clarifies that employees who have been furloughed are not considered “separated” from employment unless the terms of the furlough separately meet the definition of “separation of employment” under the California Labor Code or Unemployment Insurance Code. Accordingly, businesses that are temporarily closed or that have suspended operations due to COVID-19 must still comply with the PHELO with respect to their employees that have not been separated.
Notice and Posting Requirements
The San Francisco OLSE has published a poster suitable for employers to inform employees of their rights, and the city, state or federal resources that employees negatively impacted by COVID-19 may qualify to receive. Employers must provide notice to employees in a manner calculated to reach all employees by posting in a conspicuous place at the workplace, via electronic communication and/or in the employer’s web-based or app-based platform.
In addition, the PHELO requires that, to the extent feasible, employers must state the amount of emergency leave that is available to each employee on the employee’s itemized wage statement or in a separate writing provided to the employee on their regular pay date. Payment for leave taken by an employee must be provided no later than the payday for the next regular payroll period after the leave is taken.
Employers must retain records documenting work schedules, hours worked and leave under the PHELO. In the case of exempt employees, employers must maintain records of work schedules and days worked, but do not need to maintain records of actual hours worked. Employers must retain employee records for four years even if the employee ceases to perform work in San Francisco, or if there is a separation of employment. Employers must allow OLSE access to these records.
Protection of Rights
Like other leave laws, the PHELO prohibits interference with any right protected under the PHELO and taking any adverse action against an employee for exercising rights protected under the PHELO. Employees who believe that they have been subjected to retaliation may either file a complaint with OLSE or file a lawsuit in court against their employer.
What This Means for Employers
Private employers who are exempt under the federal FFCRA because they have 500 or more employees nationwide are now subject to nearly identical supplemental paid sick leave requirements during the COVID-19 pandemic, and should expect an influx of paid sick leave requests from employees working in San Francisco. Employers should carefully review the PHELO, the statewide COVID-19 Supplemental Paid Sick Leave Law (applicable to food sector workers), as well as the FFCRA and the Department of Labor’s regulations and ensure that policies are in place for compliance, and that management and human resources personnel have been trained on the new leave requirements. Employers are encouraged to review the requirements with an employment attorney.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, James S. Brown, Anjuli M. Cargain, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
 “Family members” include the employee’s child, parent, legal guardian or ward, sibling, grandparent, grandchild, and spouse, registered domestic partner under any state or local law or “designated person.”
 “Vulnerable populations” include people who are: (1) 60 years old and older; (2) people with certain health conditions such as heart disease, lung disease, diabetes, kidney disease and weakened immune systems; and, (3) people who are pregnant or were pregnant in the last two weeks.
 Every employer shall provide the notice in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees who are, or prior to the public health emergency were, at the workplace or job site.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.