San Francisco Amends Public Health Emergency Leave Ordinance and Issues Implementation GuidanceApril 29, 2020 – Alerts
San Francisco has amended the Public Health Emergency Leave Ordinance (PHELO) it originally passed on April 7, 2020 (as discussed in this previous alert) requiring employers to provide emergency paid sick leave to certain employees who are not covered by the Families First Coronavirus Response Act (FFCRA).
Amended Public Health Emergency Leave Ordinance
On April 14, 2020, the San Francisco Board of Supervisors passed an Amended PHELO. The Amended PHELO contains several changes, including to the definition of covered employees, the calculations and availability of leave and the leave extended to health care providers and emergency responder employees. The Amended PHELO became effective April 17, 2020, and is set to 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. We provide further details regarding the Amended PHELO below.
Definition of Covered Employees
The original PHELO applied to any full-time, part-time, temporary and seasonal employees who performed 56 or more hours of work in San Francisco during the 365 days immediately preceding the effective date of the PHELO. The Amended PHELO eliminates the 56 or more hours of work requirement. It also expands the coverage by broadening the definition of employee to include any person providing labor or services for remuneration who is an employee under California Labor Code section 2750.3(a) (This is the AB-5 standard that creates a presumption that workers are employees). This means that all workers at qualifying companies are presumed to be “employees,” and therefore will be covered by the Amended PHELO unless and until their employer demonstrates that those workers are independent contractors. Under the Amended PHELO, covered employees include:
- Part-time and temporary employees who perform work within the geographic boundaries of the City and County of San Francisco
- Employees who perform limited work within the geographic boundaries of the City and County of San Francisco and who are considered “employees” under the existing San Francisco Paid Sick Leave Ordinance (PSLO)
- Employees who are participants in a Welfare-to-Work program, including but not limited to CalWORKS and the County Adult Assistance Program (CAAP), and any successor programs that are substantially similar to them that require a public assistance applicant or recipient to work in exchange for their grant.
Calculations and Availability of Leave
The Amended PHELO provides further guidance on calculating the amount of leave available to each employee. Full-time employees, as of Feb. 25, 2020, are entitled to the full 80 hours. Part-time employees, as of Feb. 25, 2020, are entitled to receive a number of hours equal to the average number of hours over a two-week period that the employees were scheduled to work over the previous six months ending on Feb. 25, 2020, including hours the employee took leave of any type. Notably, it also provides that employers’ obligations to provide leave under the Amended PHELO shall be reduced for every hour employers allowed their employees to take paid leave or paid time off due to COVID-19, not including employees’ accrued or regular paid time off or paid sick time.
The original PHELO provided that employers had to make PHELO leave available for immediate use, regardless of whether or when employees are scheduled to work. The Amended PHELO still contains this language, but caps the amount of leave available during a single week. 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 employees were scheduled over the previous six months ending on Feb. 25, 2020, including any leave hours employees took.
Leave Extended to Health Care Providers and Emergency Response Employees
Under the original PHELO, employers of health care providers or emergency response workers could exclude such employees entirely. However, the Amended PHELO provides that employers may limit these employees’ use of leave to the extent that employees:
- Have been advised by a health care provider to self-quarantine
- Are experiencing symptoms associated with COVID-19, are seeking a medical diagnosis, and do not meet the Center for Disease Control and Prevention guidance for criteria to return to work for health care personnel with confirmed or suspected COVID-19.
San Francisco Office of Labor Standards Enforcement’s Implementation Guidance
On April 17, 2020, San Francisco’s Office of Labor Standards Enforcement (OLSE) published implementation guidance on the PHELO to provide covered employers and employees with further clarification on their respective responsibilities and rights under the newly enacted ordinance. On April 24, 2020, OLSE provided an updated version of the implementation guidance. Below, we summarize several notable clarifications the OLSE’s implementation guidance provides.
- Employers with 500 or more employees worldwide, with at least one employee in San Francisco, must comply with the PHELO for their covered San Francisco employees.
- For an employer whose employee numbers fluctuate above and below 500 over the course of a year, base the calculation on the average number of employees per pay period in 2019.
- Individually-owned franchises are not covered by the PHELO, unless the number of employees across all businesses owned by the franchise owner is equal to at least 500 employees.
- Employers that have temporarily closed or suspended operations are also covered by the PHELO.
- Any person providing labor or services for remuneration who is an employee under California Labor Code section 2750.3(a), including part-time and temporary employees, whether or not they are legally authorized to work in the United States, who perform work as an employee in San Francisco will be covered by the PHELO.
- However, the PHELO does not cover
- Employees of private sector employers at the San Francisco International Airport
- Employees of private sector employers located in “federal enclaves” such as the Presidio, Fort Mason and the Golden Gate National Recreation Area
- Independent contractors.
- Employees of “essential businesses” as defined by public health orders are covered by the PHELO, but employers of health care providers or emergency responders may elect to limit the employees’ use of Public Health Emergency Leave to the extent that the employee is unable to work because the employee:
- Has been advised by a health care provider to self-quarantine
- Is experiencing symptoms associated with COVID-19, seeking a medical diagnosis and does not meet the Centers for Disease Control and Prevention guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.
- Has been advised by a health care provider to self-quarantine
- Employees covered by a collective bargaining agreement are also covered, as long as the employee has not waived his or her rights under the PHELO in clear and unambiguous terms through a bona fide collective bargaining agreement.
- Employees who perform work outside of San Francisco (telework situations) may be covered by the PHELO, depending on when their telework situations commenced. For example, employees who worked in San Francisco prior to Feb. 25, 2020 and subsequently switched those work hours to telework outside of San Francisco, are entitled to use PHELO leave. However, employees that did not perform work in San Francisco prior to Feb. 25, 2020 and subsequently switched to teleworking in San Francisco, are not entitled to use PHELO Leave.
Effective Date & No Retroactive Date
- PHELO leave is immediately available effective April 17, 2020, regardless of how long the covered employees have been employed. However, it does not apply retroactively.
Amount of Leave
- Full-time employees, as of Feb. 25, 2020, are entitled to a maximum of 80 hours of emergency leave.
- Part-time employees, as of Feb. 25, 2020, are entitled to the average number of hours over a two-week period that they were scheduled over the six months ending on Feb. 25, 2020, including hours for which the employee took leave of any type.
- Employees hired after Feb. 25, 2020, are entitled to 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.
- However, employees shall not be entitled to more than 80 hours of PHELO Leave.
PHELO Leave in Addition to Paid Sick Leave Provided Under the Existing Orders or Ordinances
- PHELO leave must 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. Employers that provide additional paid leave in response to the COVID-19 outbreak are permitted to deduct that leave from the requirement.
- However, employers are not required to provide leave under the PHELO in addition to paid sick leave provided under the California Supplemental Paid Sick Leave Executive Order. Employers that provided paid leave under the California Supplemental Paid Sick Leave Executive Order are permitted to offset that leave from the requirement.
- Employers cannot offer bonuses or raises to employees in lieu of providing the PHELO leave.
Additional Conditions for Use of PHELO Leave
Employers may not require employees to:
- Work a different shift instead of taking PHELO leave
- Use an alternative school or place of care when they have been closed or are unavailable due to COVID-19 related reasons
- Provide the disclosure of health information or other documentation, such as a doctor’s note or letter from a child care facility in order to use PHELO leave
- Take off the full day to use PHELO leave
- Use PHELO leave to find replacement workers covering for them.
The prohibition against requiring a doctor’s note makes it extremely difficult, if not impossible, for employers to determine if the need for leave is legitimate. Employers may require employees to comply with reasonable notice procedures, but only when the need for PHELO leave is foreseeable; and to identify the basis for requesting PHELO leave.
Rate of Pay & Payment Period
- For an employee who has two jobs at different pay rates for the same employer or an employee whose rate of pay fluctuates for the same job, the employer shall reimburse the employee at the employee’s average hourly rate of pay for the 90 days prior to the date upon which the leave begins.
- Tips are not included when calculating the rate of pay under PHELO leave.
- Employers shall provide payment for PHELO leave taken by an employee no later than the payday for the next regular payroll period after the PHELO leave is taken.
Employers’ Record-Keeping Requirements
- Employers must retain records documenting employees’ work schedules, hours worked and PHELO leave taken by employees for a period of four years even if the employee ceases to perform work in San Francisco or if there is a separation of employment.
No Retaliation by Employers
- Employers may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits or in any manner discriminate or take adverse action against their employees in retaliation for their use of PHELO leave.
What Does This Mean for Employers?
Given the immediate applicability of the PHELO, employers should carefully review the current OLSE guidance and any updates that may be provided by the OLSE to revise any existing policies or procedures in compliance with the PHELO and OLSE guidance.
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