Effective Oct. 1, San Francisco implements its Public Health Emergency Leave ordinance

Effective Oct. 1, San Francisco employers with 100 or more employees worldwide are required to provide their San Francisco employees with Public Health Emergency Leave (PHEL).

Lockton comment: It is important to note that the PHEL requirement applies when the employer has an employee count of 100 or more in all locations and is not limited only to the count of San Francisco employees.

Employer is defined broadly to include all private employers that control the wages, hours and working conditions of an employee. The City of San Francisco is a covered employer, but other government entities are not. Nonprofit organizations are excluded if most of the annual revenue is not unrelated business taxable income or if they engage in healthcare operations.

Which employees are eligible for PHEL?

An employee who works within the geographic boundaries of San Francisco is covered under the PHEL provided the work they perform is considered employment under the FLSA. Whether the employee is part-time, temporary or any other classification does not affect PHEL eligibility.

Lockton comment: Essentially, any San Francisco employee will be entitled to PHEL regardless of tenure or employment classification. If an employer uses an agency to obtain temporary or permanent employees, it will be critical to identify which entity is liable to provide PHEL. We recommend this issue be specifically addressed in any contract with an employment agency used by the employer.

An employee does not have to be offered PHEL if they are covered by a bona fide collective bargaining agreement that unambiguously and expressly waives the PHEL requirements.

When can an employee use PHEL?

PHEL can be used during a public health emergency (PHE) which includes a local or statewide health emergency related to any contagious, infectious or communicable disease as declared by the City of San Francisco or the state of California, or an air quality emergency if the employee is in a “vulnerable population.”

An air quality emergency exists when the Bay Area Air Quality Management District issues a Spare the Air Alert. An employee is included in a “vulnerable population” if they are pregnant, age 60 or older, diagnosed with a heart or lung disease, or has respiratory problems such as asthma, emphysema or chronic obstructive pulmonary disease.

PHEL may be used if the employee is unable to work for any of the following reasons:

  • Staying home from work is a recommendation or requirement of a federal, state or local health order related to the PHE, or the employee is caring for a family member who is subject to that order.

  • A healthcare provider has advised the employee or the employee’s family member to isolate or quarantine.

  • The employee or employee’s family member is experiencing symptoms of and seeking a medical diagnosis, or has a positive medical diagnosis, for an illness subject to the PHE relating to possible infectious, contagious or communicable disease.

  • An employee must care for a family member whose school or place of care has been closed or the provider is unavailable due to the PHE.

  • During an air quality emergency if the employee is a member of a vulnerable population and primarily works outdoors.

The term family member is defined the same as it is under the San Francisco sick pay ordinance which includes all children having a legal relationship with the employee, parents and stepparents (including those of a domestic partner), siblings, grandparents, grandchildren, spouses and registered domestic partners. Additionally, if an employee does not have a spouse or registered domestic partner, that employee may designate one person for whom the employee may care for regardless of affinity.

An employer is permitted to impose a reasonable notice process for use of PHEL if leave is foreseeable. An employee may not use PHEL if able to safely telework.

An employer may not require disclosure of health information for use of PHEL except that an employer may require an employee to document that they belong in a vulnerable population through a doctor's note or other documentation.

Are there limits to PHEL use?

Employers may limit PHEL to employees who are emergency responders or healthcare providers unless the employee is unable to work because:

  • A healthcare provider advised the employee to isolate or quarantine.

  • The employee is experiencing symptoms and seeking a medical diagnosis, or has a positive medical diagnosis, for a possible infectious, contagious or communicable disease associated with the PHE, provided the employee does not meet federal, state or local return-to-work guidance.

  • An air quality emergency exists and the employee is a member of a vulnerable population who primarily works outdoors and the employee’s healthcare provider advised the employee not to work.

Lockton comment: Note, emergency responders and healthcare providers are only able to use PHEL due to an air quality emergency if the employee’s healthcare provider advised the employee not to work. This is a higher standard than is required of other employees who merely need to be included in a vulnerable population.

What if an employer offers other paid leave?

PHEL must be offered in addition to any paid leave the employer offered or provided as of the date the public health emergency began. Employees must be permitted to use PHEL before using other accrued paid leave unless the employee voluntarily elects to use other leave first.

How much PHEL is an employee entitled to?

For the remainder of 2022, the maximum PHEL entitlement is 40 hours for full-time employees. Starting Jan. 1, 2023, the maximum entitlement is 80 hours for full-time employees. The PHEL ordinance further explains the allocation as follows:

  • Full-time, regular or fixed schedule employees: An amount equal to the number of hours the employee regularly works or takes paid leave in a two-week period.

  • Variable schedule employees: An amount equal to the average number of hours the employee works or takes paid leave over a two-week period during the previous calendar year (or the previous six months if not employed as of Oct. 1, 2022, or Jan. 1 thereafter), or since the employee’s date of hire if after the beginning of the previous calendar year (or since the employee’s date of hire if employed for less than six months if not employed on Oct. 1, 2022, or Jan. 1 thereafter).

An employee may use PHEL immediately upon hire in increments as small as one hour. There is no carryover of unused PHEL. If an employee does not exhaust PHEL by Dec. 31, 2022, it is lost and a new “bank” of PHEL begins Jan. 1, 2023.

PHEL may be offset as follows:

  • Between Oct. 1 – Dec. 31, 2022: Voluntary employer-provided paid leave or paid time off (PTO) for PHEL qualifying reasons or any California COVID-19 supplemental paid sick leave requirements extended beyond Sept. 30, 2022.

  • Jan. 1, 2023 and beyond: By the amount of any paid leave or paid time off an employer is required to provide under federal, state or San Francisco law to provide to address a public health threat and that may be used for reasons allowed under PHEL.

Lockton comment: Although an employer may offset PHEL, there is no requirement that they do so. In some cases, particularly those with a large San Francisco population, it may be prudent to analyze the administrative and payroll costs of assessing any offsets vs. the election not to do so.

Overtime-exempt employees are paid at the same rate as they are paid in the case of other forms of paid leave. For nonexempt employees, employers pay PHEL using either the regular rate for the workweek in which the PHEL is used regardless of any overtime worked, or by dividing the total wages, excluding overtime premiums, by total hours worked in the full pay period of the 90 days of employment before PHEL use.

Employers must pay PHEL no later than the next regular payroll period date after the employee uses PHEL.

Employer notice and recordkeeping requirements

Employers must post the official notice of PHEL rights (opens a new window), in all languages published, in a conspicuous place at any workplace or job site where any employees work. If feasible, the employer must also provide the notice to employees via electronic communication such as email, text, or posting on a web-based or app-based platform.

If an employer is required to include a notice of paid sick leave on an employee’s wage statement, the employer must also include a separate itemization of available PHEL in the wage statement. If an employer provides unlimited paid leave, it may indicate "unlimited" on the wage statement.

An employer must keep records of an employee's hours worked and PHEL taken for at least four years.

Prohibited actions

An employer may not discriminate against or interfere with an employee’s use of PHEL and may not have an absence control policy that counts use of PHEL toward any adverse action.

Employer action steps

  1. Determine whether you have employees working within the geographic limits of San Francisco for whom you must provide PHEL. Remember that employees under collective bargaining agreements that specifically exclude PHEL need not be offered this additional leave. All other employees, regardless of tenure with the employer, full- or part-time status, permanent or temporary status, or any other employer classification are entitled to PHEL.

  2. Determine whether any San Francisco employee’s allotment of PHEL for 2022 (up to 40 hours) can be offset by any paid leave already provided in 2022. It is up to the employer whether they wish to offset any new PHEL provided. Employers should determine whether an offset is warranted taking into account the administrative and payroll costs in doing so.

  3. If your payroll vendor or department has not already worked with you or notified you that wage statements will be modified to add PHEL information for San Francisco employees, assure they are prepared to include an employee’s available PHEL on pay statements issued after Oct. 1, 2022. As California sick pay and the COVID-19 supplement paid sick leave information should already be included in wage statements, adding PHEL should be a similar process.

  4. If you have not done so already, post the mandatory notice of PHEL rights and distribute that notice to employees electronically if feasible to do so. Posting this notice on your intranet and notifying employees it is available is one of the easiest ways for most employers to issue the notice electronically. The mandatory notice is available from the City at the link provided above so employers need not create any additional notices.

Full alert (opens a new window)Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's Integrated Absence Solutions group are not privileged under the attorney-client privilege.