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San Francisco Issues New Guidance on San Francisco Paid Sick Leave During Pandemic; Financial Relief for San Francisco Employers

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Wage & Hour

On March 24, 2020, the San Francisco Office of Labor Standards Enforcement issued guidance pertaining to the use of Paid Sick Leave under the San Francisco Paid Sick Leave Ordinance (PSLO).  This publication supersedes the OLSE’s guidance issued just last week. Employers should be aware of temporary changes in the PSLO rules specific to the current pandemic:

  1. No Doctor’s Notes for Duration of COVID-19 Local Health Emergency

Under normal circumstances, employers may require a doctor’s note to verify the need for sick leave of more than three consecutive work days.  For the duration of the COVID-19 “Local Health Emergency,” however, employers may not require a doctor’s note or other documentation for the use of paid sick leave taken pursuant to the San Francisco Paid Sick Leave Ordinance.

The rule will automatically revert to normal after the Local Health Emergency expires, or the OLSE revokes it sooner.

  1. Eligibility for Paid Sick Leave

The OLSE clarifies that employees who have been laid off, as opposed to furloughed, are not entitled to Paid Sick Leave.

Employees who are not ill and otherwise do not qualify for PSL (see item 3, below), but who have had their hours reduced or eliminated due to business slowdowns, are not entitled to use accrued paid sick leave to make up their lost pay.  Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their scheduled hours they are unable to work.

Note, however, that employers with 499 or fewer employees in San Francisco may need to provide employees who are unable to work or telework due to local, State or Federal quarantine or isolation orders, with up to 80 hours of Emergency Paid Sick Leave under the Families First Coronavirus Response Act, which takes effect April 1, 2020.  See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

  1. Employee Use of Paid Sick Leave for Local Health Emergency Reasons

An employee may use accrued paid sick leave if he or she needs to take time off work because:

  • Public health officials or healthcare providers require or recommend that the employee isolate or quarantine him or herself;
  • The employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  As of March 6, 2020, a “vulnerable population” is a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
  • The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines above;
  • The employee takes time off work because the employee needs to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
  • The employee takes time off work because the employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.
  1. Paid Sick Leave Not Paid Out at Separation

The OLSE also revised two of its FAQs, which clarify but do not represent a change in the law:

  • Employees are not entitled to a payout of Paid Sick Leave upon termination. However, if the employer uses a combined “PTO,” unlimited PTO, or vacation policy to comply with the SF PSLO (and does not separately track and accrue Paid Sick Leave for its employees) then the PTO is paid out upon separation. This is consistent with existing California law.
  • If there is a separation from employment, and an employee is later rehired by the employer within one year, previously accrued and unused paid sick leave must be reinstated, and the employee is entitled to use the previously accrued and unused paid sick leave and to accrue additional paid sick leave upon rehiring.

Financial Relief Available for Employers

As noted in my blog post last week, if employers pay their San Francisco employees for extra sick time (beyond the amount required by the SF PSLO), the City will reimburse $15.59 per hour for extra sick leave up to 40 hours, for up to 499 employees, through its new Workers and Families First Program.  Employers would have to pay the difference between minimum wage and the employee’s regular wage.

A step-by-step program guide has been published here, but the application is still not available.  Check back frequently, because the funding is limited to $10 million and is first-come, first-served.

Additional financial relief for San Francisco businesses is available during the local COVID-19 emergency:

  • The City has deferred business taxes due April 30, 2020, for businesses with up to $10 million in gross receipts, for nine months with no interest or penalties.
  • The City is deferring collection of annual small business license and permit fees, for at least three months.
  • Water shut offs and late fees are being suspended for at least 60 days.
  • The City has declared a moratorium on commercial (and residential) evictions due to nonpayment until at least April 15, 2020, for small business and residents.

Please be sure to frequently check the Office of Economic and Workforce Development’s list of resources and financial assistance available, or contact one of the Labor and Employment attorneys at Weintraub for guidance.