Murchison & Cumming LLP

San Francisco Enacts Emergency Sick Leave Ordinance

April 13, 2020

By: Heidi C. Quan

Responding to the COVID-19 pandemic and its impact, San Francisco Bay Area cities are issuing or considering emergency ordinances requiring additional paid sick leave to cover employees not covered by the federal Families First Coronavirus Response Act (FFCRA). San Francisco and San Jose have already issued emergency ordinances and Oakland is considering doing the same.

On April 7, 2020, the San Francisco Board of Supervisors unanimously approved an emergency ordinance requiring private employers with 500 or more employees to provide public health emergency leave consistent with the federal FFCRA, subject to some exceptions for healthcare providers, emergency responders and collectively bargained employees. Last month, Congress passed into law the federal FFCRA, which guarantees emergency paid leave to covered workers to care for their own health or for family members impacted by COVID-19. However, the FFCRA exempts businesses with 500 or more employees. San Francisco's Public Health Emergency Leave Ordinance (PHELO) will go into effect as soon as it is signed by San Francisco Mayor London Breed.

Under the San Francisco PHELO, emergency paid leave would be available immediately and apply to all full-time, part-time, and even temporary and seasonal employees if they have worked at least 56 hours of work within in the City and County boundaries during the year prior to the enactment of the emergency ordinance.

The emergency leave can be used if the employee is unable to work (or telework) because of any of the following scenarios:

(1) Employee is subject to a quarantine or isolation order (including any order issued with heightened restrictions on vulnerable populations);
(2) Employee is following advice of a healthcare provider to self-quarantine related to COVID-19;
(3) Employee has COVID-19 symptoms and is seeking a medical diagnosis;
(4) Employee is caring for a family member who is subject to a quarantine or isolation order, is self-quarantining, or has COVID-19 symptoms;
(5) Employee is caring for a family member whose school or place of care, or care provider is unavailable due to COVID-19;
(6) Employee is experiencing substantially similar conditions

"Family Member" means child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person. Child, parent, sibling, grandparent, and grandchild relationships include relationships resulting from adoption; step-relationships; and foster care relationships. "Child" also includes child of domestic partner.

"Vulnerable Population" includes people who are 60 years and older; people with certain health condition such as heart disease, lung disease, diabetes, kidney disease and weakened immune system; and people who are pregnant or were pregnant in the last two weeks. Within seven days of the effective date of the ordinance, the Office of Labor Standards Enforcement will post a Notice and employers will have three days after the Notice is published to provide it in a manner which will reach all employees. The Notice must also be provided to employees in any language spoken by at least 5% of the employees.

Covered employers cannot require a doctor's note and cannot require employees exhaust other accrued sick leave or paid time off before using the emergency leave provided under the PHELO. However, if since February 25, 2020, employers had previously provided additional COVID-19 leave, any hours provided may count to comply with the ordinance.

The San Francisco PHELO will expire 60 days after enactment or upon termination of the Public Health Emergency, whichever occurs first.

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