san francisco labor laws under covid-19 labor... · • a third-party online or mobile application...

San Francisco Labor LawsUnder COVID-19

Office of Labor Standards Enforcement 1

July 29, 2020

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2Office of Labor Standards Enforcement

San Francisco Office of Labor Standards Enforcement• OLSE was established in 2001 as the first municipal labor

standards enforcement agency in the nation.• OLSE enforces laws that apply to City contractors and lessees

(e.g., prevailing wage, minimum compensation ordinance) and laws that apply to all employers in San Francisco (e.g., minimum wage, paid sick leave).

• Investigations & enforcement; worker outreach; technical assistance


Today’s Topics• Health Care Security Ordinance

Rose Auguste, OLSE• Paid Sick Leave & Public Health Emergency Leave

Linshao Chin, OLSE• Employee Protections Ordinance

Beverly Popek, OLSE• State and Federal Leave Programs

Katie Wutchiett, Legal Aid at Work


Health Care Security Ordinance (HCSO)

Rose AugusteCompliance Officer

Office of Labor Standards Enforcement (OLSE)

What is the Health Care Security Ordinance (HCSO)?

The HCSO is a San Francisco labor law that requires covered employers to make health care expenditures (spend money)

on behalf of covered employees for health care services

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Covered Employers

• Minimum size threshold based on total number of persons performing work in ALL locations throughout the world, not only San Francisco

• For-profit employers: 20+ persons perform work per quarter

• Nonprofit employers: 50+ persons perform work per quarter

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Office of Labor Standards Enforcement

*Health Care Expenditure Rates Change Annually*

Employer Spending Requirement

Employer Size 2019 2020

100+ Workers $2.93/hr $3.08/hr

20-99 Workers $1.95/hr $2.05/hr

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Options to satisfy ESR:• Provide health insurance:

• Payments for insurance premiums, including medical, dental, and/or vision insurance for covered employees and/or their spouses, partners, children, or other dependents

• Contribute to SF City Option• Contribute to a Health Savings Account,

Medical Savings Account, or other irrevocable reimbursement account

• Combination of these options

Employer Spending Requirement

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Covered Employees • Employed for at least 90 calendar days for your organization• Work on average at least 8 hours per week in San Francisco in a

quarter

NOT COVERED:• Managers/Supervisors. Must satisfy (1) job duties test and

(2) salary requirement.• Medicare or TRICARE• Employees covered by the Health Care Accountability

Ordinance (HCAO)• Employees who are receiving health care services through

another employer and who voluntarily sign an OLSE Employee Waiver Form

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Common Compliance Issues

• Failing to make any health care expenditures for anyone

• Spending too little for health insurance• Disregarding part time workers who work 8+

hours/week and may not qualify for employer’s health insurance program

• Failing to make health care expenditures for employees with other coverage

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Frequently Asked Questions During COVID-19

• My hours have been cut and/or I was recently laid off. Am I still covered under the HCSO?

• In light of COVID-19, is the OLSE authorizing employer payment extensions for the quarterly payments?

• I’ve been working remote outside of CCSF since San Francisco’s Shelter in Place order. Am I covered under the HCSO?

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• Sign up for HCSO updates

• OLSE/HCSO Website• Rules & Regulations• Administrative Guidance• OLSE Official Notices• Employee Voluntary Waiver Form

• Email us: [email protected]

• Call us: (415) 554-7892

HCSO Resources

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http://bit.ly/2yB6oXe

http://bit.ly/2yAYNYJ

mailto:[email protected]

Paid Sick LeaveOrdinance (PSLO)

Linshao Chin, OLSE Compliance Officer


Paid Sick Leave Ordinance OVERVIEW


• Applies to every worker in San Francisco

• Employees accrue 1 hour of paid sick leave for every 30 hours worked

• For a small employer with less than 10 employees, employees accrue up to 40 hours of sick leave

• For a large employer with 10 or more employees, employees accrue up to 72 hours of sick leave

• CA sick leave law (for all workers in the state)

Use of Paid Sick Leave


• An employee may use paid sick leave when they are ill or injured or for the purpose of the employee's receiving medical care, treatment, or diagnosis

• Sick leave can also be used to aid or care for the following persons - Child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person.

Paid Sick Leave and the Coronavirus• Updated guidance released March 24, 2020 (updated guidance

supersedes March 16, 2020 guidance)

• https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus


Employer Verification of Paid Sick LeaveEffective immediately, OLSE Rule 2.3 requiring doctor’s notes is suspended and replaced with the following:• Employers may not require a doctor’s note or other documentation for the

use of paid sick leave taken pursuant to the Paid Sick Leave Ordinance during the duration of the Local Health Emergency regarding Novel Coronavirus Disease 2019.

• This Rule suspension is temporary, effective only for the duration of the above-referenced Local Health Emergency. Rule 2.3 will revert automatically to the version in effect prior to this guidance upon expiration of the Local Health Emergency, unless OLSE revokes it sooner.


Further guidance on the use of Paid Sick Leave:

Visit www.sfgov.org/olse/pslo

Call the multilingual PSL hotline at (415) 554-6271

Email [email protected]


http://www.sfgov.org/olse/pslo


Public Health Emergency Leave

Ordinance (PHELO)Linshao Chin, OLSE Compliance Officer


Background• Starting April 17, 2020, businesses with 500 or more employees

worldwide must provide two weeks (up to 80 hours) of paid Public Health Emergency Leave (PHEL) to each employee who performs work in San Francisco.

• The ordinance will expire on August 16, 2020 unless reenacted by the Board of Supervisors, or upon the termination of the Public Health Emergency, whichever occurs first.


Federal and State Supplemental Leave• Families First Coronavirus Response Act (FFCRA or Act) requires

companies with fewer than 500 employees to provide paid sick leave or expanded family and medical leave. https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

• CA Supplemental Paid Sick Leave for Food Sector Workers at Companies with 500 or More Employees (Executive Order N-51-20) https://www.dir.ca.gov/dlse/FAQ-for-PSL.html


https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

https://www.dir.ca.gov/dlse/FAQ-for-PSL.html

Use of Public Health Emergency LeaveEmployees may use PHELO if they are unable to work or telework due to any of the following:

(1) 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” - (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.

(2) The employee has been advised by a health care provider to self-quarantine.

(3) The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.


Use of Public Health Emergency LeaveEmployees may use PHELO if they are unable to work or telework due to any of the following:

(4) The employee is caring for a family member who meets one of the categories listed on the previous slide.(5) 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. (6) The employee is experiencing any other substantially similar condition specified by the Local Health Officer or federal law.


PHEL for Health Care Providers and Emergency Responders

An employee who is a health care provider or an emergency responder may use Public Health Emergency Leave due to either of the following:

• The employee has been advised by a health care provider to self-quarantine.

• The employee is experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and does not meet the Centers for Disease Control and Prevention guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.


https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html?CDC_AA_refVal=https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/hcp-return-work.html

Amount of Public Health Emergency Leave Available to Employees

• Amount of leave is not accrued. Employees are entitled to the leave regardless of how long they’ve been employed.

• Employees who were full-time (40 hour per week) employees as of February 25, 2020 are entitled to 80 hours of Public Health Emergency Leave.

• Employees who were part-time employees as of February 25, 2020 are entitled to the number of Public Health Emergency Leave 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 leave of any type.


Amount of Public Health Emergency Leave available to employees

• For employees hired after February 25, 2020, the number of hours of Public Health Emergency Leave to which they are entitled is 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 leave of any type.

• Employees are not be entitled to more than 80 hours of Public Health Emergency Leave.


For more information about Public Health Emergency Leave:

Visit www.sfgov.org/olseOrdinance, FAQs, PHELO Poster

Call the multilingual PSL hotline at (415) 554-6271

Email [email protected]


http://www.sfgov.org/olse


Employee Protections Ordinance (EPO)


Background• On April 21, 2020, the San Francisco Board of Supervisors adopted the

Employee Protections Ordinance as an emergency ordinance.

• The ordinance took effect on May 1, 2020, and will expire on August 31, 2020 unless reenacted by the Board of Supervisors, or upon the termination of the Public Health Emergency, whichever occurs first.


Who is covered under this ordinance?

Someone who works at least two (2) hours a week in San Francisco for:• a grocery store, supermarket, convenience store• restaurant, cafe, or other establishment primarily engaged in the retail

sale of food• a drug store, pharmacy, or other establishment primarily engaged in

the retail sale of medication, pharmaceuticals, or medical supplies


Who is covered under this ordinance? Continued

Someone who works at least two (2) hours a week in San Francisco for:• an On-Demand Delivery Service

• a third-party online or mobile application or other internet service that offers or arranges for the consumer purchase and same-day or scheduled delivery of food products, medications, or other goods directly from no fewer than 20 restaurants, grocery stores, drug stores, and other Essential Businesses


What employees’ protections does this offer?

• Allow employees to cancel scheduled work for any reason for which an employee may otherwise use leave under the City’s Paid Sick Leave Ordinance or emergency paid sick leave under the Families First Coronavirus Response Act.

• Employees must be allowed to use any available accrued paid sick leave or emergency paid sick leave, or where reasonably feasible to reschedule or make up the work without penalty.


What employees’ protections does this offer?On-Demand Delivery Services must offer:1. Provide to or reimburse employees for the reasonable cost of purchasing necessary hand sanitizer, disinfecting cleaning supplies, and any needed personal protective equipment such as gloves and face masks. These must be provided at no cost to the employee.


What employees’ protections does this offer?On-Demand Delivery Services must offer:2. Provide the Social Distancing Protocols of Health Order No. C19-07b (Section 13.h) to employees in a manner calculated to reach all employees: via electronic communication and/or by posting conspicuously on the business’s web-based or app-based platform.

3. Offer employees who make deliveries the option of a “no-contact” delivery method where feasible with detailed guidance on how to safely make both in-person and no-contact deliveries.


What employees’ protections does this offer?On-Demand Delivery Services must offer:4. Require delivery drivers to regularly disinfect high-touch surfaces in their vehicles and compensate them for doing so. Again, there can be no cost to the employee.


Filing a Complaint / Questions

• To file a complaint under the Employee Protections Ordinance, call 311.

• For general questions, contact OLSE at (415) 554-7890 or [email protected].


WORKERS' RIGHTS AND COVID-19, STATE + FEDERAL

Katie Wutchiett

RIGHTS AND PROTECTIONS ARE RAPIDLY CHANGING, THIS

IS UP TO DATE AS OF 7/29/20

Non-profit organization founded in 1916

Educational tools; litigation; clinics & helplines; policy advocacy; direct representation

Work & Family; Gender Equity & LGBT Rights; National Origin & Immigrants’ Rights; Wage Protection; Unemployment Benefits; Racial Economic Justice; Disability Rights

LEGAL AID AT WORK


State: Existing California Family Rights Act Fair Employment and Housing Act Family School Partnership Act

Gap fills Executive Order re Food Workers

Federal: Existing Family Medical Leave Act Americans with Disabilities Act

Gap fills Families First Coronavirus Response Act

State and Federal Leaves


Job Protection if you or a family member is sick or quarantined:

California Family Rights Act/FMLA •Provides:

• Unpaid leave for a max. of 12 weeks (can be taken intermittently)• Continuation of health benefits• Covers parents, spouses, reg. domestic partners, and minor child

•COVID-19 may qualify as a serious health condition• Does not apply to asymptomatic quarantine• DFEH recognizes certification may not be practicable.

•Eligibility:• 50+ employees w/in a 75 mile radius of job location;• 1+ year of service (does not have to be consecutive); and• 1250+ hrs of work in previous year

• Potential pay during this time off: Paid Sick Days, accrued vacation, SDI or PFL or UI (in some cases)


Job Protection if you are sick: Fair Employment and Housing Act/ADA

•Eligibility:• 5+ employees (FEHA)/ 15+ employees (ADA)• Must have “disability” such as compromised immune system.

• Common cold or seasonal flu symptoms would probably not be a disability, but complications from COVID-19, such as pneumonia, might be.

•Provides:• Unpaid leave as a reasonable accommodation, unless undue

hardship• Telework as reasonable accommodation if can still perform

essential functions of job • But no requirement to continue health benefits


Job Protection if my child’s school or child care is closed and I have to miss work to care for them?

Cal. Family School Partnership Act

Eligibility:

• Work for an employer with at least 25 employees.

Provides:

• Up to 40 hours of job protected leave each year to deal with a school or child care emergency, including closure by public health directive


CA Job Protection, COVID-19Food Worker Paid Sick Days

• In April, Gov. Newsom announced Executive Order giving food workers 10 days of paid leave for:

• Subject to local quarantine or isolation order• Ordered to isolate by health care provider for

reasons related to COVID-19• Not permitted to work by employer due to

concerns related to the transmission of COVID-19

• Full pay up to $511/day• Employer must have 500+ employeesMore in the pipeline:SB 1383, AB 3216


Federal Job Protection Laws

Family Medical Leave Act• See CFRA

Americans with Disabilities Act• See FEHA


Effective April 1, 2020 – Dec. 31, 2020 Covers employers with <500 employees

Provides: 2 weeks of Emergency Paid Sick Days 12 weeks of Emergency Paid School

Closure Leave Full wages up to $511/day for own health;

2/3 up to $200/day to care for others

Federal Job Protection, COVID-19Families First Coronavirus Response Act


2 weeks (1) Employee is subject to federal, state, or local quarantine or

isolation order related to COVID-19 (2) Employee has been advised by a health care provider to

self-quarantine due to concerns related to COVID-19 (3) Employee is experiencing symptoms of COVID-19 and

seeking a medical diagnosis (4) Employee is caring for an individual subject to quarantine or

isolation order or advised to self-quarantine

12 weeks (5) Employee is caring for a child whose normal source of care

is unavailable due to the coronavirus

FFRCA


Potential Exemptions: Health care providers/emergency responders School closure leave: businesses w/ < 50 employees

may claim exemption if would jeopardize viability

FFRCA Emergency Paid Sick Leave


Pay While Out of Work

State Disability Insurance

Paid Family Leave

Unemployment Insurance


● Up to 52 weeks of worker-funded, partial wage replacementwhile unable to perform your job.● Having COVID-19 or having been exposed qualifies.● Certification required, but can be via telehealth.● Can receive even if laid off/terminated.

● Wage replacement rate is 60% for most and 70% for lowest income earners.

● Eligibility: Paid into SDI during “base period” (5 – 18 months in the past); misclassified workers should apply.

● One week waiting period waived for COVID-19.

● Citizenship/immigration status irrelevant.

State Disability Insurance (SDI)


Legal Aid at Workwww.legalaidatwork.org

Free legal advice and information in multiple languages

Work & Family Helpline (800) 880-8047

Workers’ Rights Clinic (Virtual)(415) 404-9093

https://legalaidatwork.org/factsheet/coronavirus-faq/(Covid19 Factsheet In English, Spanish, Chinese, Vietnamese)

Katherine Wutchiett: [email protected]

Questions? & Additional Resources

http://www.legalaidatwork.org/

https://legalaidatwork.org/factsheet/coronavirus-faq/


San Francisco Labor LawsUnder COVID-19

www.sfgov.org/olse


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