San Francisco Passes Amended Family Friendly Workplace Ordinance
On March 14, 2022, the City of San Francisco passed amendments to its existing Family Friendly Workplace Ordinance (“FFWO”). The amendments, which go into effect on July 12, 2022, will affect any employer with 20 or more employees who has workers either working in or telecommuting out of San Francisco. The new amendments primarily expand the FFWO by:
- Requiring employers to provide predictable or flexible working arrangements except where it would create an undue hardship
- Requiring employers to engage in a good-faith interactive process to find predictable or flexible arrangements
- Including teleworking employees
- Expanding protected caregiving activities to include elderly family members other than parents
- Expanding penalty mechanisms for enforcement
The major changes to the FFWO are discussed in more detail below, but because the amendment contains numerous complex and detailed requirements, employers should work with their employment counsel to develop a comprehensive FFWO policy for all San Francisco-based employees.
San Francisco Employers Are Now Required To Provide Flexible Or Predictable Working Arrangements Upon Request Except In The Case Of Undue Hardship
By way of background, the existing San Francisco FFWO, which was passed in 2014, gives certain employees the right to request flexible or predictable work arrangements to assist with caregiving responsibilities, as well as protection from retaliation and discrimination for requesting such an arrangement. Notably, the original FFWO does not give employees a right to any specific outcome related to that request. By contrast, the amended FFWO requires employers to provide employees with a flexible or predictable work arrangement for qualifying caregiving responsibilities upon request by the employee unless doing so would cause the employer undue hardship, defined as a significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer's business.
The Process For Establishing A Flexible or Predictable Working Arrangement Has Changed And Now Includes A Good-Faith Interactive Process
Under the previous FFWO, an employer had 21 days from the employee’s request for a flexible or predictable working arrangement to meet with the employee regarding the request, and the employer was required to respond to the request within 21 days of that meeting.
Under the amended FFWO, the employer may choose to meet with the employee regarding their request within 14 days, but they must respond to the request in writing within 21 days of receiving the original request (unless the parties agree in writing to extend it). Any denial of the request must explain the basis for the denial in writing and notify the employee of their rights to reconsideration and to file a complaint as set forth in detail in the ordinance. Any employer who does not agree to the employee’s request for a flexible or predictable working arrangement must then engage in a good faith interactive process with the employee to determine an alternative flexible or predictable working arrangement that is acceptable to both the employee and the employer.
The amended FFWO also sets forth parameters for altering existing flexible workplace arrangements.
Employees Teleworking Out Of San Francisco Are Now Protected
The original FFWO protected workers (1) employed in San Francisco, (2) for six months or more by their current employer, and (3) working at least eight hours per week on a regular basis. The amended FFWO expands that protection to include “telework,” which is defined as an employee’s work for the employer from the employee’s residence or other location that is not an office or worksite of the employer if the employer maintains an office or worksite within the city of San Francisco at which the employee may work, or prior to the COVID-19 pandemic was permitted to work. In short, if an employer maintains a workspace within San Francisco where the employee is permitted to work (or was permitted to work prior to the pandemic), then those teleworking employees are protected by the amended FFWO.
Protected Caregiving Activities Include Care For Elderly Family Other Than Parents
Under the original FFWO, protected caregiving included care of:
- a child/children under the age of eighteen;
- a person/persons with a serious health condition in a family relationship with the employee; or
- a parent (age 65 or older) of the employee.
Under the new FFWO, protected caregiving is expanded to include care of any person age 65 or older who is in a “family relationship” with the employee. “Family relationship” is defined as a relationship in which a caregiver is related by blood, legal custody, marriage, or domestic partnership to another person as a spouse, domestic partner, child, parent, sibling, grandchild, or grandparent.