Neither California nor federal law requires employers to give employees paid sick leave–but now, as a result of last November’s election, the city of San Francisco does. Sixty-one percent of San Francisco voters approved Proposition F, which requires one hour of paid sick leave per 30 hours worked. The ordinance, which takes effect Feb. 5, 2007, is the first of its kind in the nation, but the labor-backed measure could pave the way for similar laws in other cities.
Note that Prop. F is loosely modeled on California’s kincare law (Labor Code Section 233) but goes much further. For example, the kincare law doesn’t require employers to offer paid sick leave, only mandating that if paid sick leave is provided, employees must be permitted to use up to half of it for a family member’s illness.
Who Is Covered?
The new ordinance covers all workers (including part-time, temporary, and those in Welfare-to-Work programs) who are employed within the geographic limits of the city and county of San Francisco. Thus, even if an employer is located outside San Francisco and has just one worker in the city, the law applies to that one worker. And although the law is unclear, even employees who telecommute from San Francisco for an employer located elsewhere may be covered. Note, too, that for part-timers, there is no minimum number of hours that must be worked per week to qualify for paid sick leave benefits.
Accrual Terms
Employees are entitled to one hour of paid sick leave for every 30 hours worked, capped at 72 hours (or 40 hours for employers with fewer than 10 employees). Accrued leave carries over from year to year, up to the cap, but employers don’t have to pay out the accrued leave on termination. New employees, however, don’t begin accruing benefits until 90 days on the job.
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Employers with existing paid sick leave policies aren’t required to offer additional leave to comply with the new ordinance, as long as the existing policy: provides at least as much sick leave as Prop. F requires; permits employees to use the leave for the same purposes as Prop. F (see below); and otherwise meets Prop. F accrual requirements. Also, keep in mind that the ordinance sets a minimum standard for paid sick leave in San Francisco, and it encourages employers to adopt more generous policies.
Use of Leave
Employees can use the new paid sick leave for their own illness or injury as well as to care for an ill or injured child, parent, sibling, grandparent, grandchild, legal guardian or ward, spouse, or registered domestic partner or child of a domestic partner. These relationships include biological relationships and those resulting from adoption, foster care, or step-relationships. Note, too, that an employee who doesn’t have a spouse or domestic partner can designate another person for whose illness they can use their paid sick leave.
Employers can require employees to give reasonable notice of an absence for which paid sick leave will be used and may take “reasonable measures” (which the ordinance doesn’t define) to verify that the employee is legitimately using the leave. Employers must keep records of hours worked–whether the employee is nonexempt or exempt–and paid sick leave used.
New Poster
The ordinance requires San Francisco employers to post a paid sick leave notice at the worksite or jobsite. The notice must be in English, Spanish, Chinese, and any other language spoken by at least five percent of the employees at the workplace or jobsite.
No Retaliation
The new law prohibits employers from interfering with an employee’s exercise of paid sick leave rights or in any way retaliating against an employee for exercising paid sick leave rights. Also, you can’t count paid sick leave absences against an employee under an absence control policy.
Violations of the ordinance carry a penalty for the amount of the paid sick leave illegally withheld, plus three times the paid sick leave or $250, whichever is greater. In addition, a $50 fine per employee per day can be imposed for posting violations or other violations resulting in harm to an employee, such as discharge from employment. Note that officers and directors can be held personally liable for violations.
Compliance Tips
If you have employees in San Francisco, it is important to immediately implement appropriate policies and procedures to ensure full compliance when the law goes into effect next month.
If you have an existing policy providing for paid sick leave, determine whether it is sufficiently broad to comply with the new ordinance. If you offer a paid time off (PTO) program that includes paid sick leave, consider whether to offer sick leave under a separate program–otherwise, your full PTO program will likely have to meet the new requirements.