The PHELO addresses the FFCRA’s coverage gap by establishing minimum requirements for private employers with more than 500 employees.

On April 7, 2020, the San Francisco Board of Supervisors unanimously approved an emergency ordinance requiring private employers with 500 or more employees to provide public health emergency leave consistent with the federal Families First Coronavirus Response Act (FFCRA). The Public Health Emergency Leave ordinance (PHELO) follows San Francisco Mayor London Breed’s proclamation of a state of emergency, state and local shelter-in-place orders and Bay Area school closures in response to the spread of the novel coronavirus COVID-19. The ordinance will go into effect as soon as it is signed by Mayor Breed.

Under the FFCRA, temporary paid sick leave is available to certain employees who are unable to work or telework due to the COVID-19 public health emergency, but it exempts employers with 500 or more employees. We analyzed the FFCRA in previous Alerts published on March 19, 2020 and April 3, 2020. The PHELO addresses the FFCRA’s coverage gap by establishing minimum requirements for private employers with more than 500 employees, subject to certain exclusions for healthcare providers, emergency responders and collectively bargained employees.

Employees covered by the PHELO include full-time, part-time, temporary, seasonal, salaried and commissioned workers, and individuals employed through public job training programs, such as CalWorks or CAAP, who have performed at least 56 hours of work within the San Francisco City and County geographic boundaries during the prior year. Emergency leave will be available for immediate use, regardless of how long the employee has been employed by the employer and regardless whether or when the employee is scheduled to work.

Employees who are unable to work or telework may use leave in nearly identical circumstances as under the FFCRA. However, coverage is limited to the employee’s own circumstances or for caring for a family member[1] who is: (1) subject to a quarantine or isolation order related to COVID-19; (2) following advice from a healthcare provider to self-quarantine related to COVID-19; (3) experiencing symptoms associated with COVID-19 and seeking a medical diagnosis; or (4) if the family member’s school or place of care of has been closed or their care provider is unavailable due to COVID-19. This includes an employee who is a member of a “vulnerable population” who is unable to work due to public health recommendations, or any order issued by California Governor Gavin Newsom or Bay Area jurisdictions recommending or requiring additional restrictions for vulnerable or high-risk populations.

San Francisco employees also have access to paid sick leave under the SF Paid Sick Leave Ordinance and can use that leave for many of the same purposes as the PHELO. However, employers may not require employees to exhaust other accrued sick leave or paid time off before using the emergency leave provided under the PHELO. In addition, while employers may require an employee to identify the basis for requesting emergency leave, it may not require the disclosure of health information or other documentation (including but not limited to a doctor’s note) for covered absences. An employer’s obligation to provide emergency leave is reduced for every hour an employer allowed an employee to take paid leave or paid time off, consistent with the requirements of the PHELO, prior to February 25, 2020.

Within seven days of the effective date of the PHELO, the San Francisco Office of Labor Standards Enforcement (OLSE) will publish a notice suitable for employers to inform employees of their rights. Employers must provide notice to employees within three days of the OLSE’s publication in a manner calculated to reach all employees by posting in a conspicuous place at the workplace, via electronic communication and/or by posting in a conspicuous place in the employer’s web-based or app-based platform.[2]

In addition, to the extent feasible, on the employee’s itemized wage statement or in a separate writing provided to the employee on their regular pay date, employers must state the amount of emergency leave that is available to the employee. Employers shall provide payment for public health emergency leave taken by an employee no later than the payday for the next regular payroll period after the leave is taken.

Like other leave laws, the PHELO includes anti-retaliation protections that, among other provisions, prohibit interfering with any right protected under the emergency ordinance and taking any adverse action against an employee for exercising rights protected under the emergency ordinance.

What This Means for Employers

Once effective, private employers who are exempt under the federal FFCRA because they have more than 500 employees will be subject to nearly identical paid leave requirements. Accordingly, employers with more than 500 employees should expect an influx of paid sick leave and expanded family leave requests from employees. Employers should carefully review the PHELO, as well as the FFCRA and the Department of Labor’s newly issued regulations and ensure that policies are in place for compliance, and that management and human resources personnel have been trained on the new leave requirements. Employers are encouraged to review the requirements with an employment attorney.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information

If you have any questions about this Alert, please contact Eve I. Klein, Linda B. Hollinshead, James S. Brown, Anjuli M. Cargain, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.