On April 17, 2020, San Francisco Mayor London Breed signed the Public Health Emergency Leave Ordinance (PHELO). The emergency ordinance seeks to address the Families First Coronavirus Response Act (FFCRA) coverage gap as the FFCRA exempts employers with 500 or more employees. Starting April 17, 2020, businesses with 500 or more employees worldwide must provide up to 80 hours of paid Public Health Emergency Leave (PHEL) to each employee who performs work in San Francisco.
Under the PHELO, employees may use PHEL when they are unable to work (or telework) due to specified COVID-19-related reasons. The leave is in effect only during the current local emergency, and employers are not required to pay out any unused leave.
The Office of Labor Standards Enforcement (OLSE) has a Frequently Asked Questions document covering the ordinance scope and requirements.
Covered Employers/Employees
The PHELO covers private employers with 500 or more employees worldwide. To calculate employer size, all individuals performing work for the employer are counted, whether or not they work in San Francisco. The ordinance doesn’t cover employers defined as “Covered Employers” under the FFCRA.
The PHELO covers employees working within the geographic boundaries of San Francisco, including part-time and temporary employees. An “employee” includes any employee who performs limited work within the geographic boundaries of San Francisco if that employee would be considered an employee under Rule 6 of the rules implementing the Paid Sick Leave Ordinance. Employers aren’t required to permit employees to use PHEL when they are working or scheduled to work outside of San Francisco.
Some or all PHELO provisions may be waived through a collective bargaining agreement.
Covered Use*
Employees may use PHEL when they are unable to work (or telework) due to the following:
- The employee is subject to an individual or general government quarantine or isolation order related to COVID-19, including shelter-in-place orders.
- This includes an employee who is a member of a “vulnerable population,” which include people who are: (1) 60 years old and older; (2) have certain health conditions such as heart disease, lung disease, diabetes, kidney disease and weakened immune systems; or (3) who are pregnant or were pregnant in the last two weeks.
- The employee has been advised by a health care provider to self-quarantine.
- The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member who meets one of the categories listed above.
- The employee is caring for a family member if that person’s school or place of care has been closed, or the care provider of that person is unavailable, due to the Public Health Emergency.
- The employee is experiencing any other substantially similar condition specified by the Local Health Officer or federal law.
An employer may not require an employee to search for or find a replacement worker to cover their hours as a condition for that employee to take PHEL. An employer also can’t require the disclosure of health information or other documentation such as a doctor’s note or letter from a childcare facility. However, an employer may require that an employee follow reasonable notice procedures when the need for PHEL is foreseeable and identify the basis for requesting PHEL. PHEL use shouldn’t be required in any increments of more than one hour.
*Employers of “health care providers” and “emergency responders” (as defined by federal law) may limit PHEL use to two reasons: The employee has been advised by a health care provider to self-quarantine or is experiencing COVID-19 symptoms.
Leave Amount
Full-time employees working 40 hours per week, as of February 25, 2020, are entitled to 80 hours of PHEL.
Employees working part-time as of February 25, 2020, are entitled to the number of PHEL hours equal to the average number of hours over a two-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took any type of leave. Employees hired after February 25, 2020, are entitled to PHEL hours equal to the number of hours that the employee worked, on average, over a two-week period between the date of hire and the date upon which the leave is taken, including hours for which the employee took any type of leave.
Employees must have the PHEL amount available in addition to any paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance (PSLO), that the employer offered or provided to employees on or before April 17, 2020.
The PHEL must be compensated in the same manner as paid sick leave under the PSLO, which provides options for nonexempt employees. Employers may use the regular rate of pay for the workweek in which the employee uses the PHEL, whether or not the employee works overtime in that week. Alternatively, the employer may calculate the PHEL 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.
PHEL for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Employers must permit employees to use their PHEL, regardless of whether and when the employee is scheduled to work, as long as the total number of hours of leave taken in a week does not exceed the average number of hours over a one-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took any type of paid leave.
Unlike the FFCRA, the PHELO allows employers to offset the amount of PHEL by the amount of paid leave they provided employees on or after February 25, 2020, for any reason identified by the ordinance. However, previously accrued hours cannot be counted for offset purposes.
Additionally, employers that provide paid leave under the California Supplemental Paid Sick Leave Executive Order are permitted to offset that leave; the amount of PHEL that an employer must provide is reduced for every hour of California Supplemental Paid Sick Leave that the employee takes.
While an employee may choose to use PHEL before using other accrued paid time off or may voluntarily choose to use other employer-provided accrued paid time off before using PHEL, an employer can’t require an employee to do so.
Notice, Posting and Recordkeeping Requirements
All covered employers must provide a PHEL notice in whichever method(s) that it will reach all employees — whether by posting in a conspicuous location at each job site, sending the notice electronically and/or posting the notice to a web- or app-based platform. Employers must provide the notice in English, Spanish, Chinese and any language spoken by at least five percent of the employees who are, or prior to the Public Health Emergency were, at the workplace or job site. The OLSE has published a PHEL notice for employers to use.
In the same written notice where other available paid sick leave balances are included, employers are required to include the amount of available PHEL an employee has. Employers have the same record retention requirements as San Francisco’s Paid Sick Leave Ordinance, which requires employers to maintain records documenting hours worked and leave taken by employees for a period of four years.
Like with all other San Francisco ordinances, employees who assert their rights under the PHELO are protected from retaliation. San Francisco can investigate possible violations, have access to employer records and can enforce PHELO requirements by ordering reinstatement of employees, payment of paid leave unlawfully withheld and payment of penalties.
Covered employers can learn more about the PHELO by visiting the OLSE’s website.
Bianca Saad, Employment Law Subject Matter Expert, CalChamber
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including California Counties Health and Stay-at-Home Order pages.
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