Seyfarth Synopsis: A city that knows how to prepare for a natural disaster better than Charlie Mackenzie is now arming its employees to better face any future pandemics or public health crisis. San Francisco voters recently passed Proposition G, which requires employers with 100 or more employees worldwide to provide up to 80 hours of paid public health emergency leave to their San Francisco employees during a public health emergency. This ordinance will become operative on October 1, 2022.
After San Francisco repeatedly renewed its Public Health Emergency Leave Ordinance ("PHELO") related to COVID-19, the City is implementing a permanent public health emergency leave ("PHEL") requirement for employers operating within San Francisco. This leave is available during a local or statewide health emergency related to a contagious, infectious, or communicable disease as declared by the City of San Francisco or California's health officer, or when the Bay Area Air Quality Management District issues a Spare the Air Alert.
Whoa-man! A Permanent Leave Provision For Future Public Health Emergencies
From the Pentavirate To The Local Butcher Shop—Who Is Covered?
Small businesses such as Meats of the World will escape coverage of the new far-reaching law. The ordinance will apply to larger employers with 100 or more employees worldwide. The PHELO exempts certain non-profit organizations that do not engage in specific health care operations, and government entities other than the City of San Francisco.
All employees who work for a covered employer in San Francisco are entitled to PHEL, regardless of duration of employment or job title, including part-time, temporary, seasonal, and salaried employees.
The only exception for otherwise covered employers is for employees subject to a collective bargaining agreement that expressly waives PHEL in clear and unambiguous terms.
Cleave To The Types Of Leave
Employees can use PHEL in a public health emergency if the employee is unable to work for any of the reasons listed below:
- Order or Guidelines. A federal, state, or local health ordinance has made a recommendation or requirement related to the public health emergency.
- Advice from Health Care Provider. A covered employee has been advised to isolate or quarantine by a health care provider.
- Symptoms. The employee is experiencing symptoms, seeking a medical diagnosis, or has received a positive medical diagnosis for a possibly infectious, contagious, or communicable disease associated with the public health emergency.
- Caring for a Family Member. The employee is caring for a family member who is subject to an order or has been advised to isolate or quarantine by a health care provider.
- School Closure or Unavailable Care Provider. The employee is caring for a family member whose school or place of care is closed or whose care provider is unavailable due to the public health emergency.
- Air Quality Emergency. The employee is diagnosed with heart or lung disease, has respiratory problems, is pregnant, or is at least 60 years old and primarily works outside, and the Bay Area Air Quality Management District has issued a Spare the Air Alert.
An employer of a health care or emergency responder employee may elect to limit the employee's use of PHEL, but may not prevent the employee from using PHEL if the employee is unable to work due to due to an order or guidelines, advice from a health care provider, or in the event of air quality emergency.
Honeymoon Is Almost Over, And Leave Hours Details Are Here
Employers must provide PHEL to all employees for use beginning on October 1, 2022, and on January 1 of each of the following years. For employees who are not employed on these dates, when a public health emergency commences, the employer must allocate the maximum amount of PHEL available to the employee.
No employee shall receive more than 80 hours of PHEL in a calendar year and employers are not obligated to roll over any unused PHEL to the next year.
Employers must provide PHEL hours as follows:
- October 1 – December 31, 2022. The allocation must equal or average (depending on the employee's schedule) the number of hours worked over a one-week period that the employee regularly worked, not to exceed 40 hours.
- Beginning in 2023 Employees Working Full Time, Regular, or Fixed Schedules. The allocation must be equal to the number of hours the employee regularly works over a two-week period, not to exceed 80 hours.
- Beginning in 2023 Employees Working a Variable Schedule. The allocation must be equal to the average number of hours the employee worked over a two-week period or since the employee's start date if after the beginning of the previous calendar year, not to exceed 80 hours.
In addition, beginning on October 1, 2022, and continuing through the remainder of the year, employers may reduce employees' PHEL allotment if, after October 1, 2022, the employer has a paid leave or paid time off policy for covered reasons that remains in effect, and if California's COVID-19 supplemental paid sick leave requirements are extended beyond September 30, 2022 (which seems likely to happen, as AB 152 sits with Governor Newsom). Further, in 2023 and subsequent years, if federal, state, or San Francisco law requires employers to provide paid leave or paid time to address a public health emergency, and employees may use this leave for covered reasons under this ordinance, employers may reduce the amount of PHEL they provide.
The OLSE has the authority under this ordinance to issue other offset provisions if the need arises.
You Got To Belief Employees Can Be Using Leave In Many Circumstances
Employees do not have to steal your heart or your cat to be are entitled to use PHEL, regardless of their length of employment, and they are not obligated to exhaust PHEL before utilizing other paid leave provided by their employers.
An employer also cannot require an employee utilizing PHEL to find a replacement worker to cover the absent employee's work, nor can they require employees to use PHEL in specific increments.
If an employee is able to telework without increasing the employee's exposure to disease or unhealthy air quality, the employee may not use PHEL due to an order or guidelines, advice from a health care provider, or in the event of air quality emergency. Teleworking employees may still utilize PHEL for any of the other covered reasons.
Last but not least, employers may require a doctor's note or other documentation to confirm an employee qualifies to use PHEL for an air quality emergency. The ordinance does not provide any other opportunities for an employer to require or request documentation of a need for PHEL. However, if the employee's need for PHEL is foreseeable, the employer can require employees to follow reasonable notice procedures.
Married To The Same Compensation And Payroll Requirements
The ordinance uses the same rate of pay calculations as San Francisco's Paid Sick Leave Ordinance:
- Employees Exempt From Overtime. Employers pay PHEL in the same manner as they pay other forms of paid leave.
- Non-Exempt Employees. Employers pay PHEL using either the regular rate of pay for the workweek in which the PHEL is used or by dividing total wages, not including overtime premium pay, by the total hours the employee worked in the pay periods for the 90 days of employment prior to the employee's use of PHEL.
PHEL payment must be made to employees by the next regular pay period after PHEL is taken. And, employers must provide notice of the amount of PHEL available to each employee in the same way they provide notice of regular California Paid Sick Leave (whether on a wage statement or other writing). If the employer offers unlimited paid leave or paid time off, the employer must note "unlimited" on the employees' wage statements.
Lastly, employers must keep records documenting the hours worked and PHEL taken for four years.
The OLSE has published a new poster, which is available here. The poster should be posted in all available languages in the workplace, and emailed to workers who do not frequent a workplace.
Beware Of The Axe! Enforcement And Penalties For Noncompliance
San Francisco's OLSE is responsible for enforcement of the ordinance. Any employee may report suspected violations of the ordinance to San Francisco's OLSE, and the agency may investigate possible violations.
The OLSE can take the following enforcement measures:
- Award to Employee for Unlawfully Withheld PHEL. If, following an investigation, the OLSE determines that leave was unlawfully withheld, the employee will be awarded an administrative penalty of the dollar amount of PHEL withheld multiplied by three or $500, whichever amount is greater.
- Additional Award for Discrimination, Retaliation, and Interference. In the event of other violations, such as discrimination, retaliation, interference with an employee's ability to take leave, and absence control measures, the OLSE may also award restitution, including reinstatement and back pay if applicable.
- Penalties for Failure to Post PHEL Notice, Provide Agency Access to Records, or Maintain Records. In the event of these types of violations, the OLSE may impose a penalty of $500, which will increase by 50% for each subsequent violation of the same provision by the employer within a three-year period. There is no apparent cap on this penalty.
- Reimbursement for Investigation and Administrative Costs. The employer may also be required to reimburse the City of San Francisco for the costs of its investigation and administrative enforcement costs.
In addition to the OLSE's enforcement recourse, the city attorney or any person "aggrieved by a violation" of the ordinance can bring a civil action for an ordinance violation. If the person prevails, they may be awarded legal or equitable relief plus attorneys' fees and costs.
Employers impacted by San Francisco's PHEL ordinance should review, and revise if necessary, their leave of absence policies and processes, wage statements, and record keeping policies in advance of October 1, 2022. The authors and your favorite Seyfarth attorneys are always available to help employers navigate the road to compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.