On April 17, San Francisco Mayor London Breed signed into law the Emergency Public Health Emergency Leave Ordinance (PHELO), which requires large employers to provide paid sick leave benefits mirroring those required under the Families First Coronavirus Response Act (FFCRA). PHELO covers employers with more than 500 employees nationally. Importantly, employers must provide notice to employees by April 20, 2020 via a manner calculated to reach all employees: by posting in a conspicuous place at the workplace, via electronic communication, and/or by posting in a conspicuous place on an employer’s web-based or app-based platform.
Employees covered by PHELO include part-time and temporary hires and individuals employed through temporary services and/or staffing agencies who work in the City or County of San Francisco. Although prior versions required a minimum number of hours worked within the last year, the final version of PHELO includes no such requirement.
Notably, PHELO also applies to furloughed workers. PHELO builds in a presumption of employment, requiring companies to proactively demonstrate independent contractor status to deny an employee paid leave. All employees, regardless of hire date, are eligible for up to 80 hours of leave. New hires and part-time employees are eligible to take the leave based on the average hours worked.
Qualifying employees would be entitled to leave under PHELO for any of the circumstances identified in the FFCRA, and also if the employee is unable to work and is a member of a “vulnerable population”: over 60 years old, people with certain health conditions and weakened immune systems, and people who are pregnant or were pregnant in the last two weeks. Health care providers and first responders, as defined in the FFCRA, have the option to partially exclude their employees from PHELO. Nonetheless, health care provider and first responder employees are eligible for PHELO leave if they have been advised to self-quarantine or have been diagnosed with COVID-19.
The leave available under PHELO is on top of what is available through San Francisco’s existing required sick leave ordinance. However, if an employer has already provided additional paid leave since February 25, 2020 for COVID-19–related purposes, any hours will be offset against the 80-hour requirement. PHELO also includes penalties for retaliation.
Unless reauthorized, PHELO will expire June 17, 2020.
To fill the gap in the coverage of the FFCRA, we anticipate other local jurisdictions will enact similar legislation. Consultation with your legal counsel is advised to ensure that your business is complying with the array of federal, state, and local laws addressing the COVID-19 pandemic.