On April 17, 2020, Mayor London Breed signed the San Francisco Public Health Emergency Leave Ordinance (“PHELO”), which was previously passed by San Francisco’s Board of Supervisors on April 14, 2020. The PHELO became effective immediately, and San Francisco’s Office of Labor Standards Enforcement (“OLSE”) issued guidelines regarding its provisions the very next day.
The Basics
The PHELO is intended to fill the gap left by the paid leave provisions of the federal Families First Coronavirus Response Act (“FFCRA”), which only applies to employers with less than 500 employees. In contrast, the PHELO provides up to 80 hours of paid leave for employees who work for private employers with more than 500 employees and have experienced a COVID-19 related qualifying event.
Which Employers Are Covered?
The PHELO applies to private employers that operate in San Francisco with 500 or more employees worldwide.
Which Employees Are Covered?
Generally. The law generally applies to anyone who is considered an employee under California law, including part-time and temporary employees, and who performs work in San Francisco. The law exempts a few categories of workers, including those who are subject to a collective bargaining agreement that unambiguously waives PHELO’s requirements.
Additionally, though workers who have resigned, retired, or been laid off are not eligible for PHELO leave, employees who have been furloughed may use PHELO leave if they experience a qualifying event.
Health Care Provides/Emergency Responders. An earlier version of the PHELO allowed employers of health care workers and emergency responders to exclude such employees from the law completely, but the final version of the law requires employers to allow these employees to take PHELO leave, at minimum, if they cannot work or telework because they have been advised to self-quarantine or if they are showing symptoms associated with COVID-19 and do not meet the CDC’s guidance on return-to-work criteria for these categories of employees.
What Constitutes a Qualifying Event?
The events that trigger leave eligibility under the PHELO are similar to those that trigger eligibility for Emergency Paid Sick Leave under the FFCRA. Qualifying events under the PHELO include being unable to work or telework as a result of:
- An individual or general federal, state, or local quarantine or isolation order related to COVID-19, including shelter-in-place orders;
- Being advised by a health care provider to self-quarantine;
- Experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
- Needing to care for a family member who is subject to or experiencing Nos. 1-3 above; or
- Needing to care for a family member whose school or place of care is closed, or whose care provider is unavailable, due to the COVID-19 public health emergency.
How Much Leave Are Employees Entitled to Take?
Employees who were employed full-time as of February 25, 2020 are eligible for 80 hours of PHELO leave. Employees who were employed part-time employees as of February 25, 2020 are entitled to receive PHELO leave equal to the average number of hours the employee was scheduled to work during a two-week period over the six months prior to February 25, 2020. For employees hired after February 25, 2020, the law looks at the average number of hours the employee was scheduled to work over a two-week period between the time of hiring and the date leave begins.
In a given week, employees are limited to using an amount of PHELO leave equivalent to the amount of hours the employee would have worked if the qualifying event had not occurred or if the employer had not reduced the employee’s hours.
Are Employers Required to Pay Employees Who Take PHELO Leave?
Yes.
Non-exempt employees are paid according to either: (1) the regular rate of pay for the workweek in which the employee uses PHELO leave; or (2) a rate determined by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
For exempt employees, employers must calculate the pay rate the same way they calculate wage for other forms of paid leave time.
Potential Pitfalls for Employers
Under the PHELO, employers should be aware that they are prohibited from:
-Requiring employees to find replacement workers to cover shifts when they use leave;
-Requiring employees to change their schedule in lieu of using leave;
-Offering bonuses or raises to employees in lieu of providing PHELO leave;
-Requiring employees to use leave in increments of more than one-hour; and
-Denying employees on PHELO leave the same benefits they would otherwise be entitled to (if the employer provides benefits on an hourly basis).
