E-Alerts

San Francisco Requires Paid Sick Leave For Employees

Effective February 5, 2007 (the “Effective Date”), all employers must provide paid sick leave to employees who perform work in the City and County of San Francisco, California, including employees who work on a part-time or temporary basis.  This new Paid Sick Leave Ordinance (Chapter 12W of the San Francisco Administrative Code) was passed in an effort to improve the health of the citizens of San Francisco, because, for example, without paid sick leave, employees who need medical attention may come to work ill and expose other workers to infectious diseases or may refrain from obtaining medical care for their families if they feel their jobs are threatened.

Amount of Leave

Employees working on or before the Effective Date must be allowed to begin to accrue paid sick leave on that date, while employees hired after the Effective Date must be allowed to begin to accrue paid sick leave ninety (90) calendar days after the employee’s first day of work.  Employees must be allowed to accrue one (1) hour of paid sick leave for every thirty (30) hours worked.  If an employer has fewer than ten (10) employees, the employer may cap the amount of paid sick leave at forty (40) hours.  Larger employers may cap the amount of paid sick leave at seventy-two (72) hours.  Employees must be allowed to carry over sick leave from year to year, subject to the applicable accrual cap.  However, an employer is not required to compensate an employee for accrued but unused paid sick leave upon termination of employment.

Use of Leave

While an employer may require employees to give “reasonable notification” of an absence from work for which paid sick leave is or will be used, the employer may only take “reasonable measures” to verify or document that an employee’s use of paid sick leave is lawful.

Under the Paid Sick Leave Ordinance, employees may use paid sick leave for their own illnesses or injuries, and also to care for a family member (child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse or registered domestic partner) when that person is ill or injured.  If an employee has no spouse or registered domestic partner, the employee may designate one (1) person for whom the employee may use paid sick leave to provide care.  Employers must offer employees the opportunity to make this designation no later than thirty (30) work hours after the date paid sick leave begins to accrue.  The employee then has ten (10) working days to make this designation, and must be provided with the opportunity to make or change the designation on an annual basis.

Posting Requirement

Employers must post a notice informing employees of their rights in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the worksite.  It must be posted in a location where employees can read it easily.  A downloadable version of the notice in all languages spoken by more than 5% of the San Francisco workforce is available on the website of San Francisco’s Office of Labor Standards Enforcement (OLSE), at http://www.sfgov.org/site/olse_index.asp?id=49389.

Record Retention

Employers must retain records documenting hours worked by employees and paid sick leave taken by employees, for a period of four (4) years and allow OLSE access to such records.  If the employer does not maintain or retain adequate records, the OLSE will presume that the employer has violated the Paid Sick Leave Ordinance.

Represented Employees

All or any portion of the Paid Sick Leave Ordinance will not apply to employees covered by a bona fide collective bargaining agreement to the extent that the law’s requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

Violations

Pursuant to the Paid Sick Leave Ordinance, employers are prohibited from retaliating against employees who exercise their rights under the Ordinance.  In fact, taking any adverse action against an employee within ninety (90) days of the person’s exercise of such rights will create a rebuttable presumption that such adverse action was taken in retaliation for the exercise of such rights.

Employees who are denied their rights under the law may bring a civil action against their employer.  San Francisco also may investigate possible violations on its own and institute an administrative action.  An award of damages may include reinstatement, back pay, payment of paid sick leave unlawfully withheld, and additional monetary penalties.  If an employee is successful in bringing a civil action against the employer, the employee may also be awarded attorneys’ fees and costs.

Practical Tips

We recommend that employers with employees who perform services in the City or County of San Francisco promptly review all sick and paid time off leave policies to:

• ensure compliance with mandated rates of accrual of paid sick leave;
• ensure that payroll systems can adequately address the accrual issues;
• review record retention policies and practices;
• review an employee’s recent leave time off before taking adverse action;
• post the required notice in all relevant languages; and
• review agreements with temporary staffing agencies to evaluate compliance with the Paid Sick Leave Ordinance.

We also recommend that employers with employees in multiple states consider whether they will extend the same benefits to employees outside of San Francisco.

As always, please feel free to give me a call with any questions about the Ordinance or about leave policies generally.