The City of San Francisco passed the Public Health Emergency Leave (PHEL) Ordinance, creating a permanent leave benefit during a public health emergency.
Effective October 1, 2022, the PHEL creates a permanent public health emergency leave, which is in addition to other types of paid leave employers provide to their employees. The PHEL applies to employers with 100 or more total employees, regardless of their location. The following are key points employers should note.
Employees who work within San Francisco may use leave for themselves or for the care and assistance of a family member. A family member is a child, grandchild, grandparent, parent, sibling, spouse or domestic partner, or a designated person if the employee does not have a spouse or domestic partner.
An eligible employee may use PHEL protected leave if they are unable to work for any of the following reasons:
- Recommendations or requirements of an individual or general federal, state, or local health order;
- Employee has been advised by a healthcare provider to isolate or quarantine;
- Employee 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;
- Employee is caring for a family member whose school or place of care has been closed or is unavailable due to the public health emergency; or
- There is an air quality emergency and the employee belongs to a vulnerable population and primarily works outdoors.
Amount of Leave and Administration
On October 1, 2022, and on January 1 of each following year, employers must allocate up to 80 hours of paid leave for public health emergencies. Full-time employees or those on a fixed schedule must receive an amount equal to the number of hours the employee regularly works or takes paid leave over a two-week period. For employees with a variable schedule, the amount should be equal to the average number of hours the employee worked or took paid leave over a two-week period during the previous calendar year or since the employee’s start date. Employers do not have to carry over unused PHEL year to year.
Rate of Pay
Exempt employees are paid PHEL in the same way they receive other forms of paid leave. Non-exempt employees may use either the regular rate for the workweek in which the employee uses PHEL (regardless of overtime) or by dividing total wages by total hours worked in the full pay periods of the 90 days of employment before PHEL use (excluding overtime).
If an employee uses other employer-provided paid leave or paid time off for a PHEL-covered reason or if the California COVID-19 supplemental paid sick leave requirements are extended beyond September 3, 2022, then the employer may reduce the number of hours allocated under the PHEL for every hour an employee takes such paid leave or paid time off. If a federal, state, or San Francisco law in 2023 or beyond requires paid leave or paid time off for a public health threat, employers may similarly offset the amount of PHEL required.
Notice, Posting, and Recordkeeping
Employers may require reasonable confirmation that an employee is a member of a vulnerable population but cannot otherwise require employees to disclose health information in order to take PHEL. A city-created posting must be displayed conspicuously and via electronic communication. If employers are required to provide a similar notice under the Healthy Workplaces, Healthy Families Act of 2014, they must include the amount of PHEL available on paystubs or other mandatory notices provided on payday. Documentation of hours worked and PHEL taken must be kept for four years.
Prohibitions and Enforcement
Employers cannot require employees to find a replacement worker to cover their hours nor can they ask employees to use PHEL in increments of more than one hour. If an adverse action is taken against any employee within 90 days of exercising their rights under the PHEL, it is presumed that adverse action is retaliation. For violations of the PHEL, employees may be awarded the greater of the amount of leave withheld multiplied by three or $500. Employees may also receive restitution in the form of reinstatement and back pay in the event of interference, discrimination, retaliation, and absence control policy violations. In addition to the City Attorney’s and the San Francisco Office of Labor Standards Enforcement’s (OLSE) powers of enforcement, employees also have a private right of action for all forms of relief.
- Review the PHEL here.
- Review and update existing policies for eligible paid leave.
- Display required notices.
- Have appropriate personnel trained in the new requirements.
- Review the San Francisco Office of Labor Standards Enforcement’s website for additional guidance.
Looking for more information about compliance changes impacting San Francisco? Review the recent blog: San Francisco Releases 2023 Expenditure Rates for Health Care Security Ordinance.