In June, San Francisco voters approved Proposition G, which created the Public Health Emergency Leave Ordinance (PHELO). The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The ordinance took effect on October 1, 2022. In conjunction with the effective date, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued a Frequently Asked Questions page to assist with the application of the new law.
The FAQs cover topics including:
- Scope of the Ordinance
- Amount of Leave
- Use of Leave
- Payment for Leave
- Notice and Posting
- Employer Records
Scope of the Ordinance
PHELO applies to employers with 100 or more employees worldwide. The OLSE states that if the number of employees fluctuates above and below 100 in the course of a year, employers should calculate business size based on “the average number of employees per pay period during the preceding calendar year.”
The FAQs also clarify that employees who work at San Francisco International Airport (SFO) are not covered by the ordinance as it is outside the geographic boundaries of San Francisco.
Amount of Leave
The FAQs specify the calculation of leave for employees as follows:
- Full-time regular or fixed schedule employees are entitled to the number of hours over a one-week period that the employee regularly works, not to exceed 40 hours through December 31, 2022. As of January 1, 2023, such employees should get the number of hours the employee would work in a two-week period, not to exceed 80 hours.
- Part-time employees or variable hours employees are entitled to the number of hours equal to the average number of hours over a one-week period that the employee was scheduled over the previous calendar year through December 31, 2022. As of January 1, 2023, such employees would be entitled to the average number of hours over a two-week period worked during the previous calendar year.
Clarification of Interaction with COVID-19 SPSL
The OLSE also clarifies in the FAQs the interaction between PHELO and statewide COVID-19 Supplemental Paid Sick leave (SPSL) stating that employers that provide SPSL are permitted to offset that leave from the required PHELO entitlement e.g. the amount of PHELO that an employer must provide is reduced for every hour of SPSL that the employee takes after October 1, 2022.
Use of Leave
The FAQs state that an employer may require a doctor’s note or other documentation to confirm an employee’s status as a member of a vulnerable population for purposes of using the leave. However, an employer may not otherwise require the disclosure of health information for an employee to use PHELO.
Payment of Leave
The FAQs clarify that PHELO is to be compensated in the same manner as paid sick leave, which provides two options for non-exempt employees e.g. regular rate of pay for the workweek the leave is used or 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.
For exempt employees, PHELO pay must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Notice and Posting
The OLSE specifies that employers must post a notice informing employees of their rights under the ordinance. To that end, the OSLE has published a notice available on its website.
As to recordkeeping requirements, employers must retain records documenting hours worked by employees and Public Health Emergency Leave taken by employees, for a period of four years.
If you have questions about compliance with San Francisco’s Public Health Emergency Leave Ordinance or related issues, contact a Jackson Lewis attorney to discuss.