California HR

From the Experts: The Latest on San Francisco’s Paid Sick Leave Law; Will the Nation Follow?






This month’s expert is
Mary L. Topliff, principal of the Law Offices of Mary L. Topliff in San Francisco,
specializing in employment law counseling, training, and compliance.

 

It’s been a few months
since San Francisco’s
landmark paid sick leave law went into effect, yet there remains confusion as
to the law’s coverage and other requirements. This article will summarize the
law’s provisions and discuss new developments that are shedding some light on
employers’ obligations. In addition, we’ll take a look at how, since the
passage of San Francisco’s
law, other paid sick leave measures may be gaining traction across the nation.

 


Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.


 

Chapter 12W Basics

The San Francisco law,
which is Chapter 12W of San Francisco’s Administrative Code, requires all employers
to provide one hour of paid sick leave for every 30 hours worked to all
employees who work in San Francisco, up to a cap of 72 hours for employers with
10 or more employees or 40 hours for employers with fewer than 10 employees.
The accrued leave must be carried over from year to year, up to the accrual cap.
Employers do not have to pay out the accrued leave when a worker’s employment
ends.

 

Employees who were
employed as of Feb. 5, 2007, when the law went into effect, began accruing paid
sick leave according to Chapter 12W’s requirements as of that date—whether they
are full-time, part-time, or temporary. Employees hired after Feb. 5 begin accruing
sick leave after 90 days of continuous employment.

 

Employees can use the
accrued sick leave for their own illness or medical treatment or a family
member’s, including a child, parent, legal guardian, sibling, grandparent, grandchild,
spouse, or registered domestic partner. The employer must provide an employee
who doesn’t have a spouse or registered domestic partner a 10-day period of
time each year in which to designate a person for whom the employee may take
time off in the event of that person’s illness.

 

Employers may require
employees to give reasonable notice of absences, but they may only take “reasonable
measures to verify or document that an employee’s use of paid sick leave is

lawful.” Employers cannot take a disciplinary or other adverse employment action
against an employee for using paid sick leave—a significant departure from most
employer policies.

 

For employers whose paid
sick leave or paid time off policies already provide at least the time off
accruals required by this ordinance, no additional accruals are required.
However, these employers must still comply with the other aspects of the law.

 

The city attorney and
aggrieved employees may pursue violations, including in a civil action.
Remedies include liquidated damages and the prevailing party’s attorney’s fees.

 

What’s New

San Francisco’s Office of Labor
Standards Enforcement (OLSE) has been busy carrying out its responsibility to
administer Chapter 12W. The OLSE issued (and later revised several times) a set
of “Frequently Asked Questions,” a “Fact Sheet,” and an official notice that San Francisco employers
must post.

 

Also, on March 7, 2007,
the San Francisco Board of Supervisors enacted an ordinance called, “Transition
Period for Implementation of Paid Sick Leave Ordinance.” This development
caused a fair amount of confusion because many thought it delayed the effective
date of the ordinance. To the contrary, this “Transition Period” ordinance
provides that an employer may only delay paying accrued sick leave until June 6,
but that the accruals must have been in place as of Feb. 5, 2007.

 

The OLSE has also
proposed regulations to implement the ordinance. The draft rules clarify the
following:

 

• Requiring advance
notification from an employee of a prescheduled or foreseeable absence is
reasonable, unless the time required is “excessive,” which is not defined.
Advance notification of more than two hours for unforeseeable absences is
unreasonable.

 

• An employer’s demand
for a doctor’s note or certification is unreasonable if it is for three or
fewer consecutive work days of absence, unless there is a pattern or clear
instance of “abuse,” which is not defined, or the absence was for a medical appointment.

 

• Employers may not
require employees to use more paid sick leave than actually required, unless the
employer can verify that it had to pay for a replacement employee for the
longer period

of time.

 

• The 90-day waiting
period for new employees to accrue sick leave does not apply if the employee is
rehired within one year of separation by the same employer.

 

 

• Employees paid on a
piece rate or commission basis must be paid sick leave on a pro rata earnings
basis (total calendar year earnings divided by total hours worked up to two
times the San Francisco minimum wage (which is currently $9.14 per hour)).

 

• Employees who work in
San Francisco on an occasional basis are covered by the law if they work 56 or
more hours in San Francisco within a calendar year; employees who travel
through San Francisco and stop as part of their work (such as to make deliveries)
are covered for all hours worked in the city, including travel time.

 

The OLSE’s materials are
available on its paid sick leave website at www.sfgov.org/site/olse_indexasp?id=49389.
Employers should periodically check the website to ensure they’re up on the
latest rules and information.