Requiring employers to provide additional paid leave to employees during certain public health emergencies—including Spare the Air days—Proposition G is not tied to the COVID-19 pandemic or other specific health emergency, unlike prior leave laws. Voted into law by San Franciscans in June 2022, the new ordinance goes into effect on October 1, 2022.

Which Employers Are Covered by the Ordinance?

The ordinance requires employers with 100 or more employees worldwide to provide public health emergency leave (PHEL) to their San Francisco employees. So, if an employer has 100 employees worldwide, but only 20 are located in San Francisco, the employer is required to comply with the new ordinance by providing public health emergency leave to its San Francisco employees.

The ordinance excludes specified non-profit organizations that are not engaged in healthcare operations, and government entities other than the City and County of San Francisco.

The ordinance will also not apply to employees covered by a bona fide collective bargaining agreement that expressly waives the ordinance's requirements in clear and unambiguous terms.

Under What Circumstances Can an Employee Use Public Health Emergency Leave?

San Francisco employees may use PHEL for themselves or, under certain circumstances, to care for or assist a "family member" (i.e., child, parent, legal guardian, sibling, grandparent, spouse, domestic partner, or another designated person if the employee has no spouse or domestic partner).

Employees may use PHEL if they are unable to work due to any of the following:

• 1. The employee's inability to work due to an individual or general federal, state, or local health order related to a Public Health Emergency (see definition below).
• 2. The employee has been advised by a healthcare provider to isolate or quarantine.
• 3. The employee is experiencing symptoms of and seeking medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease related to the Public Health Emergency.
• 4. The employee is caring for a family member who is experiencing scenarios (1), (2), or (3) listed above.
• 5. The employee is caring for a family member whose school or place of care has been closed, or the care provider of the family member is unavailable due to the Public Health Emergency.
• 6. There is an Air Quality Emergency (see definition below), and the employee is part of a "vulnerable population" (meaning they: (i) have been diagnosed with a heart or lung disease; (ii) have respiratory problems including asthma, emphysema, or chronic obstructive pulmonary disease; (iii) are pregnant; (iv) or are age 60 or older), and the employee works primarily outdoors. Employers may require medical documentation proving that an individual is part of a "vulnerable population."

The ordinance defines a "Public Health Emergency" as a local or statewide health emergency relating to a contagious, infectious, or communicable disease¹ and an "Air Quality Emergency" as a day when the Bay Area Air Quality Management District issues a Spare the Air Alert.

Impact on Employees Who Can Work Remotely: If an employee is able to telework without increasing the employee's exposure to disease or poor air quality, the employees will not be eligible to use PHEL for scenarios (1), (2), or (6).

Special Provisions for Certain Healthcare or Emergency Responder Employees: The ordinance allows employers to elect to limit PHEL for certain employees who are healthcare providers or emergency responders. However, at a minimum, these employees must be provided PHEL if they are unable to work due to any of the following:

• 1. A healthcare provider advises the employee to isolate or quarantine;
• 2. The employee is experiencing symptoms of, is seeking diagnosis, or has received a positive diagnosis, for a possible infectious, contagious, or communicable disease associated with the Public Health Emergency and does not meet federal, state, or local guidance to return to work; and
• 3. There is an Air Quality Emergency, the employee is a member of a vulnerable population, the employee works primarily outdoors, and a healthcare provider has advised the employee not to work during an Air Quality Emergency.

How Much Public Health Emergency Leave Do Eligible Employees Receive?

From October 1 through December 31, 2022 employees who work a full-time, regular, or fixed schedule must be provided with PHEL equal to the number of hours they regularly work over a one-week period, up to 40 hours. Starting January 1, 2023, full-time, regular, and fixed-schedule employees must be provided with PHEL equal to the number of hours they work regularly over a two-week period, up to 80 hours. For employees whose hours vary, the amount of leave will depend on the average number of hours the employee worked the previous calendar year, the previous six months (if they were not employed as of October 1, 2022 or January 1 in subsequent years), or since their start date (if the employee has been employed less than six months and was not employed as of October 1, 2022 or January 1 in subsequent years).

PHEL must be provided in addition to other accrued leave but may be offset by other leave taken by employees in the following circumstances.

• 1. During 2022:
  • a. If the employer voluntarily extended additional paid leave or time off which employees can use for the purposes listed above, and that policy remains in effect after October 1, 2022; or
  • b. If the statewide COVID-19 supplemental sick leave requirements are extended beyond September 30, 2022.²
• 2. During 2023 and subsequent years:
  • a. If the employer is required by federal, state, or city law to provide paid leave to address a public health threat that employees can use for the same purposes listed in the ordinance.

These offset provisions permit employers to reduce the allocation of PHEL for every hour an employee takes other overlapping leave. For example, if a full-time employee takes 8 hours of COVID-19 supplemental paid sick leave on October 17, 2022 because they are experiencing symptoms of COVID-19, their available balance of PHEL from October 1 through December 31, 2022, would be reduced from 40 hours to 32 hours.

When Can Eligible Employees Use Public Health Emergency Leave?

Covered employers must allocate PHEL to employees starting on October 1, 2022 and on January 1 of each subsequent year. Employers must make this leave immediately available to employees, regardless of how long they have been employed and whether they are full-time, part-time, temporary, seasonal, or salaried.

Employers are not required to carry over an employee's unused PHEL from year to year.

How Should Covered Employers Pay Public Health Emergency Leave?

The ordinance uses the same rate of pay calculations as San Francisco's Paid Sick Leave Ordinance. For exempt employees, employers should pay PHEL in the same manner they pay other forms of leave. For non-exempt employees, employers should pay PHEL using either the regular rate of the workweek in which an employee uses PHEL or by dividing total wages (excluding overtime premiums) by total hours worked in the full pay periods of the 90 days of employment before PHEL use. The PHEL rate of pay cannot be less than the San Francisco minimum wage.

What Other Steps Must Covered Employers Take?

Covered employers must conspicuously post a San Francisco Office of Labor Standards Enforcement notice in all languages in which it is made available. Where feasible, employers must also provide this notice to employees via electronic communication like text, email, or an employer's web-based platform.

If a covered employer is also required to provide similar notice under California's paid sick leave law, they must also display the amount of PHEL on employees' paystubs. If the employer provides unlimited paid leave or time off, they can simply indicate "unlimited" on the paystubs.

Covered employers must keep records documenting PHEL for four years.

What Are Potential Consequences for Non-Compliance?

The ordinance allows individuals to file complaints with the San Francisco Office of Labor Standards Enforcement (OLSE). If the OLSE determines that any PHEL was withheld, the employer will be liable for three times the amount withheld or $500, whichever is greater. The OLSE can also assess $500 administrative penalties for violations of the ordinance, which will increase by 50% for each subsequent violation of the same provision within a three-year period.

The City Attorney or individual employees aggrieved by a violation of the ordinance can also file a civil action in court and receive appropriate monetary or equitable relief.

What Should Employers Be Doing Now?

• Review and update existing policies to incorporate PHEL as appropriate;
• Monitor the San Francisco OLSE website for updated FAQs regarding the new law;
• If an employer has not voluntarily extended COVID-19 supplemental leave through December 31, 2022 monitor the status of AB152, the bill extending California's existing supplemental sick leave law;
• Review payroll procedures to include available PHEL balances on wage statements or in a separate statement with each pay check; and
• Educate supervisors on PHEL, the employer's practices concerning processing of leave requests under PHEL, and how to respond to employee questions.

FOOTNOTES

1  In addition to COVID-19, San Francisco has declared MPX (a.k.a. monkeypox) a public health emergency as of August 1, 2022. MPX | San Francisco (sf.gov). Therefore, employees may use PHEL for MPX.
2  The California Legislature has passed AB152, a three-month extension of the statewide COVID-19 supplemental sick leave requirements until December 31, 2022. The legislation is awaiting Governor Newsom's signature or veto. Governor Newsom must sign or veto the bill on or before September 30, 2022. For more information, see Davis Wright Tremaine's prior alert on the extension.

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