On May 7, 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) published 14 new rules for interpreting the San Francisco Paid Sick Leave Ordinance (“PSLO”). The PSLO was amended on January 1, 2017. The new rules take effect on June 7, 2018.
Rule 1 – Employee Notification of Need for Leave
The rule clarifies that employers may establish policies or procedures dictating how employees need to give notice of a need for leave.
1.1: Policies requiring advance notice for pre-scheduled absences (like a doctor’s appointment) are generally presumed reasonable. But, rules requiring excessive amounts of time for advance notice, or especially burdensome methods of communicating the notice, might not be reasonable.
1.2: Policies requiring notice “as soon as practicable” for an unforeseeable absence will be presumed reasonable. But, policies requiring more than two (2) hours’ notice for an unscheduled absence are not reasonable. Employers may define “as soon as practicable” as two hours, or less than two hours, prior to the start of an employee’s work shift. Employers must recognize that there are instances such as accidents or sudden illnesses for which such a requirement is unreasonable.
1.5: Employers cannot require that employees use magic words (“PSLO” or “paid sick leave”) when giving notice of an absence. If an employee says “I’m out sick” that is all the notice needed.
Takeaway: Employers’ “notice” policies should provide for more than one method of notice if feasible (i.e., call, email or text message to the manager) that allows the employee some flexibility and ease of providing notice. Employers should also allow someone else to give notice on the employee’s behalf if the employee is incapacitated. Policies should specify that “whenever possible”, employees give up to two hours’ advance notice and note that in an emergency, employees should give notice as soon as practicable.
Rule 2 – Verifying Valid Use of Paid Sick Leave
2.1: Employers can require verification (such as a doctor’s note) that provides information necessary to confirm that the absence was for a statutory reason (illness, injury, domestic violence, sexual assault, or stalking suffered by the employee, bone marrow/organ donation, etc.) Employers cannot demand additional information or details (such as for a diagnosis of a specific condition).
2.3-2.5: Employers may only use reasonable methods to verify that an employee did not abuse a paid sick leave policy. Employers may require a doctor’s note for either (1) verification of a doctor’s appointment if the reason given for the leave was an appointment; or (2) three or more consecutive missed workdays. Employers cannot require a doctor’s note for less than three consecutive missed days, unless there is a “clear pattern” or instance of abuse.
Takeaway: Make sure your policies do not require a doctor’s note for each instance of paid sick leave of less than three workdays. Consult with legal counsel before deeming an employee’s use of leave abusive and demanding a doctor’s note.
Rule 5 – Rate of Pay
The PSLO will track the State law in regards to calculating rates of pay and defining “exempt” employees as those exempt from the federal Fair Labor Standards Act and California labor law.
5.3: If the employee is an exempt employee, and no other forms of paid leave are provided, the employee’s salary shall continue without deduction for sick time taken, with the time taken applied against the employee’s leave balance.
Rule 6 – Work-From-Home and Occasional Workers in San Francisco
6.1: Employees who live in San Francisco and work from home or telecommute, are covered by the PSLO if they perform 56 or more hours of work in San Francisco in a calendar year.
6.2: Employees who simply travel through San Francisco (i.e., rivers who drive through San Francisco while working) are not covered unless they actually stop in the City to work (for example, to make pickups or deliveries) and work 56 or more hours in the City in a calendar year.
Rule 7 – Small Business Exemption – Fluctuating Workforce
The ordinance does not apply to employers with fewer than 10 employees. If a small employer’s workforce fluctuates above and below 10, then the OLSE will determine if an employer is covered by taking the average number of employees who worked during the prior calendar year.
For new employers, OLSE will calculate business size for the current calendar year based upon the average number of persons per week who worked for compensation for the first 90 days after its first employee(s) began work.
Takeaway: Small employers should calculate their average employees at the end of each calendar year. If you were above 10 last year, the PLSO covers your employees this year, even if you fall below 10.
The attorneys in Weintraub Tobin’s Labor and Employment Group assist employers in all areas of employment law compliance. Contact any one of us if we can be of assistance.