San Francisco Issues New Guidance Regarding Paid Sick Leave and COVID-19

Topics: COVID-19, Employee Leave

On February 22, 2022, the San Francisco Office of Labor Standards Enforcement (OLSE) issued a temporary update to its guidance regarding the City’s Paid Sick Leave Ordinance.  The guidance applies to all employers with employees, including temporary and part-time employees, who perform work in San Francisco, regardless of the number of hours worked or where the employer is located.  The guidance went into effect immediately, remains in effect during the COVID-19 public health emergency, and relates to the use of San Francisco Paid Sick Leave (PSL) for COVID-19 related reasons.  It supersedes the OLSE’s March 24, 2020 guidance, issued near the start of the COVID-19 pandemic. 

Employer Verification of PSL:  Under the prior guidance, it was deemed unreasonable for an employer to ask an employee for a doctor’s note or other documentation substantiating their need for PSL unless the employee was out of work for more than three (3) consecutive days (whether full or partial days). The OLSE has now extended the presumption of unreasonableness to when an employee is out for up to and including (5) consecutive days (whether full or partial days) for COVID-19 related reasons and is not under a doctor’s care.  The employer shall accept the employee’s attestation of their need for PSL pursuant to current CDC guidelines.  OLSE Rule 2.4 remains in effect, which permits employers to require a doctor’s note in cases where there is a pattern or clear instance of abuse of PSL.

COVID-19 Reasons for Use of PSL:  The new guidance permits covered employees to use accrued PSL for the following COVID-19 related reasons (which overlaps to some degree with the state’s Supplemental COVID Paid Sick Leave law, but is a separate ordinance):

• to isolate or quarantine to prevent the spread of COVID-19 at the recommendation of a public health official or healthcare provider;
• for a COVID-19 vaccination appointment or vaccination side effects; 
• when the employee’s business or work location temporarily ceases operations in response to a public health or other public official’s recommendation, subject to the Eligibility for PSL guidelines, above,
• to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
• to care for a family member whose school, childcare provider, senior care provider or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Eligibility for PSL:  The OLSE has clarified that accrued and unused PSL is only available to employees.  It is not available to workers who have been laid off from their employment (unless they are rehired within one year of separation).  In addition, employees who have had their hours reduced or eliminated are not entitled to PSL to make up for the reduction or elimination of hours.