New San Francisco Public Health Emergency Leave Ordinance

San Francisco repeatedly renewed its Public Health Emergency Leave Ordinance related to COVID-19 over the past two years. Public sentiment affirmed this direction when San Francisco voters passed Proposition G, a new Public Health Emergency Leave Ordinance (PHELO) which makes permanent the public health emergency leave requirement for employers operating within San Francisco.
 

Ordinance Overview

The following are the key tenets of the ordinance:
 
  • Effective Date: The ordinance becomes effective on October 1, 2022. 
  • Only for Public Emergencies: The leave is only available during a declared local or statewide health emergency related to a contagious, infectious, or communicable disease.
  • Covered Employers: Businesses with 100 or more employees worldwide are subject to the ordinance. 
  • Employees Covered: All employees who work in San Francisco for a covered employer are entitled to Public Health Emergency Leave (PHEL), regardless of the duration of employment or job title, including part-time, temporary, seasonal, and salaried employees.
  • Benefit Provided: Each employee who performs work in San Francisco must be provided up to 80 hours of paid Public Health Emergency Leave.
  • In Addition to PTO: The paid leave is in addition to any other paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance.
  • Teleworking Capacity: There are certain restrictions on using PHEL if an employee can telework without increasing exposure to disease or unhealthy air quality.
  • Declaration of Emergency: A qualifying public emergency may be declared by the City of San Francisco or California’s health officer or when the Bay Area Air Quality Management District issues a Spare the Air Alert.
 

Leave Reasons

Employees may use this leave when they are unable to work (or telework) due to the following reasons:
 
  • Order or Guidelines: The recommendations or requirements of an individual or general federal, state, or local health order (including an order issued by the local jurisdiction in which an employee or a family member the employee is caring for resides).
  • Symptoms: The employee, or a family member the employee is caring for, is experiencing symptoms, seeking a medical diagnosis, or has received a positive medical diagnosis for a possibly infectious, contagious, or communicable disease associated with the public health emergency.
  • Isolate or Quarantine: An employee, or a family member the employee is caring for, has been advised to isolate or quarantine by a healthcare provider.
  • School Closure or Unavailable Care Provider: The employee is caring for a family member whose school or place of care is closed or whose care provider is unavailable due to a public health emergency.
  • Air Quality Emergency: The employee is diagnosed with heart or lung disease, has respiratory problems, is pregnant, or is at least 60 years old and primarily works outside, and the Bay Area Air Quality Management District has issued a Spare the Air Alert.

Special note on Teleworking Capability: If an employee can telework without increasing the employee’s exposure to disease or unhealthy air quality, the employee may not use PHEL if the declared reason is an order or guideline, advice from a health care provider, or in the event of air quality emergency. Teleworking employees may still utilize PHEL for other covered reasons.
 

Benefit Calculations

  • Same Basis as SF Paid Sick Leave: The ordinance uses the same rate of pay calculations as San Francisco’s Paid Sick Leave Ordinance.
  • Exempt Employees: Employers pay PHEL in the same manner as they pay other forms of paid leave.
  • Non-Exempt Employees: Employers pay PHEL using one of two methods:
    • The regular rate of pay for the workweek in which the PHEL is used 
    • Divide total wages (not including overtime premium pay) by the total hours the employee worked in the pay periods for the 90 days of employment prior to the employee’s use of PHEL.
 

Employer Obligations

  • Leave Payment Timing: PHEL payments must be made to employees by the next regular pay period after the leave is taken. 
  • Health Benefits: Health insurance benefits must be maintained while an employee is on a PHEL leave in the same manner as when the employee is an active employee.
  • No Rollover: Employers are not obligated to roll over any unused PHEL to the next year.
  • No Payout: Employers are not required to pay out any unused leave. 
  • Doctor’s Note Restrictions: Employers may require a doctor’s note or other documentation to confirm an employee qualifies to use PHEL for an air quality emergency. The ordinance does not provide for any other opportunities for an employer to require or request documentation of a need for PHEL. 
 

Phased In Allocation of Hours

  • October 1 – December 31, 2022: The allocation must equal or average (depending on the employee’s schedule) the number of hours worked over a one-week period that the employee regularly worked, not to exceed 40 hours.
  • Beginning in 2023 Employees Working Full Time, Regular, or Fixed Schedules: The allocation must be equal to the number of hours the employee regularly works over a two-week period, not to exceed 80 hours.
  • Beginning in 2023 Employees Working a Variable Schedule: The allocation must be equal to the average number of hours the employee worked over a two-week period or since the employee’s start date if after the beginning of the previous calendar year, not to exceed 80 hours.
  • Future Employees: Future hired employees (who are not employed on these dates), must be allocated the maximum amount of PHEL available to the employee when a public health emergency commences.

Notice and Recordkeeping Requirements

  • Employer Poster: Employers must post a poster notice in a conspicuous location. The poster should be posted in all available languages in the workplace and emailed to workers who do not frequent the workplace. 
  • Employer Leave Balance Notice: Employers must provide notice of the amount of PHEL available to each employee in the same way they provide notice of regular California Paid Sick Leave (whether on a wage statement or other writing). If the employer offers unlimited paid leave or paid time off, the employer must note “unlimited” on the employees’ wage statements.
  • Employer Recordkeeping: Employers must keep records documenting the hours worked and PHEL was taken for four years.
  • Employee Foreseeability: If the employee’s need for PHEL is foreseeable, the employer can require employees to follow reasonable notice procedures.

Exemptions and Limitations

  • Healthcare Worker Limitation: An employer of health care providers or emergency responder employees may elect to limit the employee’s use of this leave but may not prevent the employee from using it if the employee is unable to work due to due to an order or guidelines, advice from a health care provider, or in the event of air quality emergency.
  • Non-Profit Exemption: The PHELO exempts certain non-profit organizations that do not engage in specific health care operations, and government entities other than the City of San Francisco.
  • Collective Bargaining Exemption: The only exception for otherwise covered employers is for employees subject to a collective bargaining agreement that expressly waives PHEL in clear and unambiguous terms.

Penalties and Enforcement

  • Non-Retaliation: Employees who assert their rights to receive Public Health Emergency Leave are protected from retaliation. 
  • Governing Authority: San Francisco’s Office of Labor Standards Enforcement is responsible for the enforcement of the ordinance.
  • Penalties: If PHEL is unlawfully withheld, the employee will be awarded an administrative penalty of the dollar amount of PHEL withheld multiplied by three or $500, whichever amount is greater. Penalties also exist for failing to post the PHEL notice and for failing to retain records.

Action Item for Employers

Employers impacted by the San Francisco PHELO should address the following action items prior to October 1, 2022:
 
  • Update Policies: Review (and revise, if necessary) their leave of absence policies and processes.
  • Address Recordkeeping: Update leave record-keeping practices (in the payroll system or other methods).
  • Post Notice: Post the required Poster Notice.
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