San Francisco’s New Paid Public Health Emergency Leave Now In Effect

Voters in San Francisco recently approved a new City ordinance requiring certain employers to provide their San Francisco employees with paid leave for specific reasons related to public health emergencies (PHEL). Different from prior paid leave laws, PHEL is not specifically tied to the COVID pandemic but rather to public health emergencies in general. The PHEL Ordinance became effective on October 1, 2022. Read on for more details and important information.

Covered Employers

Employers subject to PHEL include those with 100 or more employees worldwide who have employees working within the geographic boundaries of San Francisco. This means that if an employer has 100 employees worldwide but only 10 are working in San Francisco, the employer must provide PHEL to only those San Francisco employees. If an employer’s employee headcount fluctuates throughout the year below 100 employees, employers should average the number of employees per pay period during the preceding calendar year.

Certain non-profit employers are exempt from PHEL. Individually-owned franchises are not covered under the PHEL Ordinance unless 100 employees work across all businesses owned by the franchise owner. For staffing agency employees, the business that employs or exercises control over the wages, hours, or working conditions of the worker is responsible for providing PHEL, when applicable.

Covered Employees

All employees performing work within the geographic boundaries of San Francisco, regardless of immigration status, are covered employees under the PHEL Ordinance. This includes part-time, seasonal, and temporary employees. PHEL must be provided to all covered employees regardless of how long they have been working for the covered employer.

The PHEL Ordinance does not apply to union employees covered by a bona fide collective bargaining agreement that expressly waives PHEL in clear and unambiguous terms in the agreement.

PHEL Qualifying Uses

Covered employees may use PHEL if they are unable to work, including telework, during a Public Health Emergency^[1] for the following reasons:

1. 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^[2] the employee is caring for resides) related to the Public Health Emergency.

2. The employee or a family member of an employee for whom the employee is caring for has been advised by a healthcare provider to isolate or quarantine.

3. The employee or family member of an employee for whom the employee is caring for is experiencing symptoms of and seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the Public Health Emergency.

4. The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the Public Health Emergency.

5. An Air Quality Emergency^[3], if the Employee is a member of a vulnerable population^[4] and primarily works outdoors.

PHEL use can be limited for certain employees who are healthcare providers or emergency responders under specific circumstances.

If the need for PHEL is foreseeable, employers may require employees to provide advance notice of their need for PHEL in accordance with the employer’s regular absence notification procedures.

Employers are prohibited from requiring an employee using PHEL to search for or find a replacement worker for coverage and from requiring an employee to use other paid leave before using PHEL. In addition, employers are prohibited from retaliating by discriminating or taking adverse action against employees for using PHEL.

PHEL Amount

Full-Time Employees

As of October 1, 2022 through December 31, 2022, full-time, regular, or fixed schedule employees must be provided with PHEL equal to the number of hours they regularly work or take paid leave over a one-week period, up to 40 hours.

As of January 1, 2023 (and on each subsequent January 1), full-time, regular, or fixed schedule employees must be provided with PHEL equal to the number of hours they regularly work or take paid leave over a two-week period, up to 80 hours.

Part-Time Employees

As of October 1, 2022 through December 31, 2022, part-time or variable hour employees must be provided with PHEL equal to the average number of hours over a one-week period they worked during the previous calendar year, up to 40 hours.

As of January 1, 2023 (and on each subsequent January 1), part-time or variable hour employees must be provided with PHEL equal to the average number of hours over a two-week period that the employee worked during the previous calendar year, up to 80 hours.

Employees may use PHEL time in hourly increments.

Employers are not required to carry over an employee’s unused PHEL from year to year. Further, employers are not required to pay out unused PHEL time upon an employee’s termination from employment. However, if an employee is rehired by the same employer within one year, unused PHEL time must be reinstated and available for use at the time of rehire.

PHEL Rate of Pay

PHEL must be paid in accordance with the following:

• Non-exempt employees: using either one of the following methods, but not less than the San Francisco minimum wage:

  • regular rate of pay for the workweek in which the employee uses PHEL, whether or not the employee works overtime in that week

  • 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.

• Exempt employees: in the same manner as employee is compensated for other forms of paid leave time.

Employers are required to pay PHEL to employees no later than the payday for the next regular payroll period after the PHEL was taken.

Interaction with other Paid Sick Leave Laws/Regulations

Employees must be provided PHEL in addition to any paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance.

During 2022, employers may reduce PHEL required amounts if, after October 1, 2022, employees use either of the following types of paid leave:

• Voluntary employer-provided paid time off for PHEL qualifying reasons

• California supplemental COVID-19 paid leave time, which was recently extended by the CA Governor to December 31, 2022.

During 2023 (and subsequent years), employers may reduce PHEL required amounts if federal, state, or San Francisco law requires employers to provide paid leave or paid time off to address a public health threat, and employees may use this type of leave for PHEL covered reasons.

Notice, Posting & Recordkeeping Requirements

Employers are required to conspicuously post the PHEL model notice at the worksite and, when feasible, provide it via electronic communications within the employer’s web-based or app-based platform.

Employers must maintain records documenting hours worked and PHEL taken for employees for a period of four years.

If a covered employer is required to provide notice under California’s paid sick leave law, they must also indicate the amount of available PHEL on employees’ paystubs. If an employer provides unlimited paid time off to employees, the paystubs may reflect “unlimited” for this purpose.

Non-Compliance Penalties

Individuals may report suspected violations of the PHEL Ordinance to the San Francisco Office of Labor Standards Enforcement, which will investigate and order appropriate relief as applicable. If PHEL was unlawfully withheld, a penalty amount equal to either the dollar amount of paid leave withheld multiplied by three or $500, whichever amount is greater, may be awarded to employees. Employees may also be awarded reinstatement and back pay in certain instances. Employers could face penalties of $500 each for administrative penalties, including failure to post the required notice, failure to maintain required records, and refusal of access to required records. Additionally, covered employees may bring a civil action against employers for PHEL Ordinance violations.

Next Steps for Employers

Since the PHEL Ordinance went into effect on October 1, 2022, covered employers are advised to take the following steps now to comply:

1. Review and revise existing leave policies to integrate PHEL requirements.

2. Post the PHEL model notice at the physical worksite and via electronic means.

3. Train Human Resources team members and managers on PHEL requirements.

4. Update time management systems as appropriate to track PHEL hours used for covered employees.

5. Update payroll systems to ensure that PHEL balances on paystubs (or in a separate wage statement) are reflected for each pay period for covered employees.

Risk Strategies is here to help. Contact us today.

[1] Public Health Emergency generally means a local or statewide health emergency related to any contagious, infectious, or communicable disease, declared by the City’s local health officer or the state health officer.

[2] Family member generally means a child, parent, legal guardian, sibling, grandparent, spouse, domestic partner, or another designated person if the employee has no spouse or domestic partner.

[3] Air Quality Emergency means a day when the Bay Area Air Quality Management District issues a Spare the Air Alert.

[4]Vulnerable population means a person who has been diagnosed with heart or lung disease; has respiratory problems including but not limited to asthma, emphysema, and chronic obstructive pulmonary disease; is pregnant; or is age 60 or older.