Legal Update

Apr 16, 2020

San Francisco Rapidly Amends COVID Emergency Paid Sick Leave Ordinance

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Seyfarth Synopsis: Last week, the San Francisco Board of Supervisors passed the Public Health Emergency Leave Ordinance to expand paid sick leave to employees not entitled to leave under the federal Families First Coronavirus Response Act. This week, the Board approved an amended version of the ordinance, which will be effective upon Mayor London Breed’s signature.

On April 7, 2020, San Francisco passed a Public Health Emergency Leave Ordinance (“PHELO”), but it was not enacted. Just one week later, on April 14, 2020, the Board of Supervisors approved a new ordinance that  revised the original PHELO passed the previous week. Much of the original language (which was discussed here) remains, but the updated PHELO makes changes to the definition of covered employees, the calculation and availability of leave, and extends the leave to health care providers and emergency responders.

Covered Employees. Previously, the PHELO applied to any full-time, part-time, temporary, and seasonal employee who performed 56 hours of work in the City and County of San Francisco in the 365 days prior to its enactment. The ordinance, as amended, applies to any person providing labor or services for remuneration who is deemed an employee under Cal. Lab. Code ¶ 2750.3(a) (which creates a presumption that workers are employees). This includes part-time and temporary employees, persons employed through “Welfare-to-Work Programs,” and individuals who are considered employees under the existing San Francisco Paid Sick Leave Ordinance (“PSLO”).

Calculation of Leave. The updated PHELO provides further clarity on calculating the amount of leave available to each employee. Full-time employees are entitled to 80 hours of emergency leave. For part-time employees, employers should provide the average number of hours worked over a two-week period over the six-month period from September 25, 2019 through February 25, 2020, including any leave hours taken. The updated ordinance, however, still allows employers that already proactively provided time off due to COVID-19 (separate from the employee’s accrued or regular PTO or paid sick time) to offset their obligations under the PHELO. 

Health Care Providers & Emergency Responders. The PHELO initially allowed employers of health care providers and emergency responders to exclude these employees entirely. As amended, the ordinance instead allows employers to elect to limit such employees’ use of emergency leave. At a minimum, these employees must be permitted to use the PHELO leave if they are unable to work (at their customary place of work or telework) because either (1) a health care provider advises them to self-quarantine, or (2) they are experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and do not meet the CDC guidance for criteria to return to work for health care personnel with confirmed or suspected COVID-19.

Availability of Leave. Originally, the PHELO directed employers to make leave available, regardless of whether or when an employee is scheduled to work. The latest version still contains this language, but caps the amount of leave available during a single week to the average number of hours over a one-week period the employee was scheduled to work over the six-month period from September 25, 2019 through February 25, 2020, including any leave hours taken.

The new version of the PHELO is currently on the desk of Mayor Breed, who has until April 24, 2020, to sign it into law.

If you have additional questions, contact your favorite Seyfarth attorney or Seyfarth’s COVID-19 Task Force or visit our COVID-19 Resource Center.