San Francisco Supplemental COVID Paid Sick Leave Ordinance In Effect
San Francisco’s mayor signed into law the supplemental paid sick leave ordinance effective April 17, 2020. No information was posted about the ordinance until April 18, 2020, however. The signed ordinance is somewhat different than prior versions being considered by the Board of Supervisors. Here are the details of the new San Francisco paid sick leave law:
Covered Employers and Employees
The San Francisco ordinance essentially aims to require employers who are not covered by the recently enacted federal paid leave law (the FFCRA) to provide the same paid sick leave benefits required of employers who ARE covered by the FFCRA. In essence, this means that private sector employers with 500 or more employees nationally are covered. These employers are required to provide additional paid sick leave to employees working in San Francisco. A “covered employee” is an employee who performs work in San Francisco (at least 56 hours per year). Employers may limit supplemental paid sick leave use by health care providers and emergency responders, as those terms are defined for purposes of the FFCRA. See the DOL’s guidance on these terms here (Questions 56-57). However, an employer must provide the supplemental paid sick leave to health care providers and emergency responders who have been advised by a health care provider to quarantine and/or who have symptoms of Covid-19, are seeking a medical diagnosis, and do not meet the CDC criteria for a health care provider with a confirmed or suspected case of Covid-19 to return to work.
Amount of Paid Sick Leave
The ordinance requires covered employers to provide up to 80 hours of paid sick leave to employees who were full-time as of February 25, 2020. Employees who were part-time, temporary or seasonal as of February 25, 2020 are entitled to sick leave equal to the number of hours they were scheduled to work, on average, in a two week period during the six months prior to February 25, 2020. This includes time during which they took leave of any type.
The requirement to provide additional public health emergency paid sick leave is on top of existing paid sick leave required by law and/or provided under company policies. However, an employer is entitled to a limited offset for any paid leave provided for Covid-19 reasons after February 25, 2020 that was over and above an employee’s previously accrued hours. An employer cannot require an employee to exhaust previously accrued paid time off prior to taking the emergency paid sick leave required under the ordinance.
Permissible Reasons for Use of Leave
An employee may use paid sick leave if he/she is unable to work (or telework) for the following reasons:
- The employee is subject to an individual or general federal, state, or local quarantine or isolation order related to COVID-19, including state or local shelter at home orders. This includes an employee who is a member of a vulnerable population as defined by San Francisco’s shelter at home orders and/or state shelter at home orders.
- The employee has been advised by a health care provider to self-quarantine.
- The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member who is subject to an order as described in subsection (1), has been advised as described in subsection (2), or is experiencing symptoms as described in subsection (3).
- 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 under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services.
Increments for Use
An employer may not require employees to use paid sick leave in increments of more than one hour.
Amount of Pay
Emergency paid sick leave must be paid using the same method as is used for normal paid sick leave provided in compliance with San Francisco’s pre-existing paid sick leave ordinance. (For more detailed information on this, please see here.) The caps on paid sick leave compensation that are set forth in the FFCRA do not apply.
An employer can require an employee to provide the basis (reason) for using the emergency paid sick leave, but may not require disclosure of private health information and may not require documentation (including a doctor’s note) to substantiate a leave request.
Expiration of Benefit
The emergency paid sick leave benefit expires at the time of expiration of the ordinance (61 days after its enactment [unless extended] or upon termination of the public health emergency, whichever occurs first). An employee is not entitled to carry over paid sick leave provided under the ordinance and is not entitled to payout of any unused paid sick leave.
Collective Bargaining Agreement Exemption
The ordinance does not apply to employees covered by a CBA if the CBA expressly waives the requirements of the ordinance.
Employers are required to provide employees notice of their rights under the ordinance. A model notice, along with FAQ guidance, is available here.
Employers are also required to provide notice to employees of the amount of public health emergency paid sick leave they have available. This information should be included on the same notice (or pay stub) provided to employees each pay period that shows accrued sick leave hours (under existing state and local paid sick leave laws).