Effective October 1, 2022, businesses with 100 or more employees worldwide must provide up to 80 hours of paid Public Health Emergency Leave ("PHELO") to each employee who performs work in the City or County of San Francisco and is unable to work (or telework) due to the following:
- The recommendations or requirements of an individual or general federal, state, or local health order (including an order issued by the local jurisdiction in which an employee or a Family Member the employee is caring for resides) related to the Public Health Emergency.
- The employee, or a Family Member the employee is caring for, has been advised by a Healthcare Provider to isolate or quarantine.
- The employee, or a Family Member the employee is caring for, is experiencing symptoms of and seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the Public Health Emergency.
- The employee is caring for a Family Member if the school or place of care of the Family Member has been closed, or the care provider of such Family Member is unavailable, due to the Public Health Emergency.
- An Air Quality Emergency, if the employee is a member of a Vulnerable Population and primarily works outdoors
“Public Health Emergency” means a local or statewide health emergency related to any contagious, infectious, or communicable disease, declared by the City’s local health officer or the state health officer pursuant to the California Health and Safety Code, or an Air Quality Emergency.
“Vulnerable Population” means a person who has been diagnosed with heart or lung disease; has respiratory problems including but not limited to asthma, emphysema, and chronic obstructive pulmonary disease; is pregnant; or is age 60 or older.
Amount of Leave
Leave banks are provided to employees on their start date and then every January 1 thereafter so long as the Public Health Emergency is in effect
Full-time, fixed schedule employees: For October 1, 2022 to December 31, 2022, the number of hours over a one-week period the employee regularly works, not to exceed 40 hours and for 2023, the number of hours over a two-week period the employee regularly works, not to exceed 80 hours
Variable schedule employees: For October 1, 2022 to December 31, 2022, the average number of hours over a one-week period the employee regularly works, not to exceed 40 hours and for 2023, the average number of hours over a two-week period the employee worked during the previous calendar year or since the employee’s start date, not to exceed 80 hours.
Rate of Pay
Non-exempt employees should be paid: (a) in the same manner as the regular rate of pay for the workweek in which the employee uses leave, whether or not the employee works overtime in that workweek; or (b) 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 90 days of employment prior to the employee’s use of leave.
Exempt employees should be paid in the same manner as the Employer calculates wages for other forms of paid leave.
Other Important Factors:
- There is no minimum length of service required and applicable to full-time, part-time, permanent, temporary or seasonal employees and those paid by the hour, salary or commission. Payment must be made by the next regular payroll period after the leave is taken and employee paystubs must show the amount of leave available.
- An Employer is not required to carry over an employee’s unused PHELO from year to year or to cash out any unused amount.
- Employers make offset the requirement to provide PHELO if, on or after October 1, 2022, they pay sick leave for the reasons outlined in PHELO, whether the payment was paid pursuant to a voluntary paid sick leave program, local or state paid leave requirements.
- An Employer may require reasonable notice procedures but may not require the employee to search for or find a replacement worker to cover the hours during which the employee is on leave.
- Employers may require a doctor’s note but only for an employee who seeks to use leave applicable only to members of a Vulnerable Population.
- Healthcare Providers and Emergency Responder employers may elect to limit employee use of PHELO, but must permit employees to use leave if required to quarantine or isolate, or if experiencing symptoms or diagnosis of the disease that prompted the Public Health Emergency and the employee does not meet requirements to return to work.
- Certain non-profit organizations are exempt from providing PHELO.
- As with all other forms of paid leave, retaliation against an employee for its use is prohibited. PHELO takes this one step further by including a provision that raises a rebuttable presumption of retaliation if an employer takes an adverse action against a person within 90 days of that person filing a complaint alleging a violation of PHELO.
- Employers must keep records related to PHELO for four years.
- Employers must post in a conscious place, or distribute electronically or on company intranet sites, the following poster: https://sfgov.org/olse/sites/default/files/Public%20Health%20Emergency%20leave%20Poster%207.2022.pdf