On the Cutting Edge of the Cutting Edge: Paid Sick Leave in San Francisco During the COVID-19 Crisis

03.30.2020

California, often considered a national leader in the advancement of employee rights, is one of only 11 states that require employers to offer paid sick leave.  The Healthy Workplaces, Healthy Families Act of 2014 requires that employees who work 30 or more days a year receive one hour of leave for every 30 hours worked up to, at a minimum, 24 hours (or 3 days) of accrued paid sick leave per year. Employees may take leave when they are ill, seeking medical treatment, or when caring for family members.

In addition to the state law, however, seven California cities have their own local ordinances supplementing California’s paid sick leave requirements.  Continuing its efforts to be on the cutting edge of employee rights and protections even within the progressive State of California, the City of San Francisco is among these seven cities.  San Francisco requires that employers permit all employees (including temporary and part-time employees) who perform work in San Francisco to accrue up to a minimum of 72 hours (for businesses with 10 or more employees) or 48 hours (for businesses with fewer than 10 employees).

We have already posted about the efforts of San Francisco Mayor London Breed to spearhead San Francisco’s position as a state-wide and national leader in worker protections in our previous alert, San Francisco— First City in California to Announce It Will Provide Paid Sick Leave Benefits for Employees Affected by COVID-19. Recognizing the ongoing need by employers for clarification during this health crisis, on March 24, 2020, the City of San Francisco’s Office of Labor Standards Enforcement (“OLSE”) issued updated guidance regarding the use of paid sick leave by employees working within the city under San Francisco’s Paid Sick Leave Ordinance (“PSLO”). 

The most notable changes in this new OLSE guidance are:

• Paid sick leave under the PSLO is only available to current employees (i.e., those who remain scheduled to work) for use when they are unable to work their scheduled hours for qualifying reasons.  Paid sick leave is not available to workers who have been laid off or had their hours reduced/eliminated to account for reduced/eliminated time; and
• Paid sick leave must be provided to employees unless there “has been a separation of employment (e.g., termination, layoff, resignation, or retirement),” and employers are not required to pay employees for accrued unused sick leave upon separation but, if the employee is rehired within a year, are required to credit the employee for all previously accrued unused sick leave.

These new clarifications supplement the provisions of a previous March 16, 2020 OLSE guidance memo, which ordered that, effective immediately and until the resolution of the crisis, employers may not require a doctor’s note or other documentation for the use of paid sick leave taken pursuant to the PSLO.  Additionally, this previous guidance enumerated the qualifying reasons for employees to take leave under San Francisco’s PSLO, which continue to include when employees are:

• Sick;
• Self-quarantined;
• Any person potentially exposed, over the age of 60 or with underlying health conditions;
• Caring for a sick family member;
• Home because of a temporary work closure in response to a public official’s recommendation; or
• Caring for a child who is home because of school/daycare closures in response to a public official’s recommendation.

The laws impacting employee leave are rapidly changing, particularly as the federal Family First Coronavirus Response Act goes into effect on April 1, 2020.  See our recent post, HR 6201: What Employers Need to Know About the Federal Families First Coronavirus Response Act.  We have also recently posted about available tax relief for paid leave in our recent post, COVID-19 RELIEF:  Employment Tax Credit is Now Available for Businesses Subject to Mandated Paid Leave Under the Families First Coronavirus Response Act.

All employers must remain vigilant as both COVID-19 and the various governmental responses to it continue to impact the workplace.  This is especially true for employers in San Francisco, as The City remains on the cutting edge of the cutting edge.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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