Key Points:

• SF passed emergency ordinance requiring employers to provide workers with supplemental COVID-related paid leave.
• The ordinance applies to employers not covered by federal Families First Coronavirus Response Act.
• Employers are required now to post notice about this emergency leave, which is available from SF’s Office of Labor Standards Enforcement.

Despite the discussions of reopening businesses, employees may not be returning to work anytime soon. Effective April 17, 2020, San Francisco passed a temporary Public Health Emergency Leave Ordinance (PHELO) that requires businesses with 500 or more employees worldwide to provide up to 80 hours of paid Public Health Emergency Leave to employees who perform work in San Francisco.

Other cities and counties have passed similar ordinances and more are likely to follow suit, as reported in our April 9 client alert.. PHELO is a temporary emergency ordinance, set to expire on June 17, 2020 unless reenacted by the Board of Supervisors.

Covered Employers

Employers with 500 or more employees worldwide must comply with PHELO for employees who work or telework within the City, with limited exceptions for private sector employees who work at the San Francisco International Airport or within federal enclaves. The ordinance does not apply to employers covered by the federal Families First Coronavirus Response Act.  See our March 19, 2020 client alert.

According to San Francisco's Office of Labor Standards Enforcement ("OLSE"), PHELO applies to businesses that have temporarily closed or suspended operations. Separated employees, however, are not entitled to PHELO leave. Upon an employee’s separation from employment, an employer is not obligated to provide or pay for any PHELO not used prior to separation.

PHELO allows for a Collective Bargaining Agreement waiver if the waiver of PHELO's provisions is made in clear and unambiguous terms in the CBA or side letter.

Amount of Leave

Employees who worked full-time (40 hour per week) as of February 25, 2020 are entitled to 80 hours of paid PHELO leave. Employees who were part-time employees as of February 25, 2020, or who were hired after February 25, 2020, are entitled to the number of PHELO leave hours equal to the average number of hours scheduled over a two-week period. 

PHELO leave must be made available to employees in addition to any paid time off that the employer offered or provided to employees on or before April 17, 2020, including paid sick leave required under the San Francisco Paid Sick Leave Ordinance. However, employers that already implemented additional paid leave for employees in response to the COVID-19 outbreak are permitted to offset the additional leave against PHELO leave requirements.

Reasons for Use

An employee must be permitted to use PHELO leave for 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. This includes an employee who is a member of a “vulnerable population," defined as individuals who are 60 years old and older; have certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems; and are pregnant or were pregnant in the last two weeks.
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 seeking a medical diagnosis.
4. The employee is caring for a Family Member who is subject to a quarantine or isolation order, has been advised to quarantine, or is experiencing symptoms.
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.
6. The employee is experiencing any other substantially similar condition specified by the Local Health Officer or the United States Secretary of Health and Human Services.

Employers of an employee who is a health care provider or an emergency responder may elect to limit such an employee’s use of PHELO.

Notice and Recordkeeping

Employers may require employees to comply with reasonable notice procedures, but only when the need for PHELO leave is foreseeable. An employer may require an employee to identify the basis for requesting Public Health Emergency Leave, but may not require the disclosure of health information or other documentation, such as a doctor’s note or letter from a child care facility.

To the extent feasible, employers are required to set forth the amount of PHELO leave that is available to the employee. This can be done either on the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.

Employers are also required to post a 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 by posting in a conspicuous place in an Employer’s web-based or app-based platform.   

No Retaliation

It is unlawful for an employer to retaliate against an employee for exercising his or her rights under PHELO, including by reducing any other employee benefits. There is a rebuttable presumption of retaliation if adverse action is taken against an employee within 90 days of exercising rights under PHELO.

Employer Takeaways

Determine if your business is covered by this emergency ordinance and, if so, grant this new emergency leave to your employees who perform work in San Francisco. You also need to post or send the required notice to your employees. 

Stay tuned to see if this emergency measure is extended beyond June 17, 2020.  

Please contact your Hanson Bridgett attorney if you have any questions.