San Francisco OLSE Issues New Guidance on Use of Paid Sick Leave for COVID-19 Related Reasons

Topics: COVID-19, Legal Information, New Laws & Legislation

On March 24, 2020, the San Francisco Office of Labor Standards Enforcement (OLSE, responsible for enforcing the City’s wage and other employment laws) issued new guidance regarding use of paid sick leave applicable to San Francisco employees for reasons relating to COVID-19, superseding the guidance published just one week prior on March 16, 2020. 

The new guidance provides that an employer may not require a doctor’s note or other documentation for an employee’s use of paid sick leave, during the duration of the local health emergency relating to COVID-19.  What is unclear is whether an employer may nonetheless require a doctor’s note, not for use of paid sick leave, but to ascertain whether an employee may safely return to work without posing a threat of infection to the workplace, if the employee experienced COVID-19 symptoms, or was in contact with an infected person.  Because an employer also has obligations to maintain a safe workplace, this must be assessed on an individual basis given the circumstances.  This particular provision of the guidance expressly applies only during the period of the local health emergency.

Under this new guidance, employees may use paid sick leave for any of the following qualifying reasons:

• The employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease, or to provide care for a family member so ordered;
   
• The employee takes time off work because the employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  As of March 6, 2020, a “vulnerable population” is a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
   
• The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines (that is, with exceptions for furloughs, lay-offs, or reduced hours, see below);
   
• The employee takes time off work because the employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Importantly, the guidance provides that employees are not eligible for paid sick leave if they have been laid off, or had their hours reduced or eliminated (i.e. temporary lay-offs or furloughs).  Employees with reduced work hours may use accrued paid sick leave for any of the qualifying reasons identified in the guidance for any scheduled hours they are unable to work.

The new guidance may be found here:  https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus-0.

Of note, the OLSE also indicated on its web page that it will provide for some potential relief for workers (with 20% earmarked for employees of small businesses with 50 or fewer employees) to receive additional paid sick leave and marked this as “Coming Soon”:

The City will contribute up to 40 hours of additional paid sick leave time to employees beyond existing policies through the Workers and Families First Program. This new program provides financial assistance to businesses and nonprofits and may support over 16,000 additional weeks of sick leave pay and coverage for up to 25,000 San Francisco employees working in the city or on City-owned property, including the San Francisco International Airport. All San Francisco businesses are eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. Employers may download applications for the program, to be posted the week of March 23, 2020, at the Office of Economic & Workforce Development website.