Employers with employees in the City and County of San Francisco have a new obligation. Beginning Feb. 5, 2007, all employers must provide paid sick leave to each employee who performs work within San Francisco. The benefits of the ordinance are afforded to full-time, part-time and temporary workers.
If an employer has a paid leave policy that may be used for the same purposes as paid sick leave under the law and that is sufficient to meet the accrual requirements under the law, the employer is not required to provide additional paid sick leave. These requirements shall 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.
When the Ordinance Applies
The employee is entitled to the paid leave when the employee is ill or injured, or requires medical care, treatment, or diagnosis. The leave is also available to an employee who needs to aid or care for a family member or "designated person" when that person is ill, injured, or receiving medical care, treatment, or diagnosis.
If an employee has no spouse or registered domestic partner, the employee may designate one person for whom the employee may use paid sick leave to provide aid or care. Employers must offer the opportunity to make a designation no later than 30 work hours after the date paid sick leave begins to accrue. The employee has 10 work days to make this designation. Employers must offer the opportunity to make or change the designation on an annual basis, again with a window of 10 work days for the employee to make the designation.
How the Paid Leave is Accrued
An employee accrues one hour of paid sick leave for every 30 hours worked. The accrued time only accumulates in hour increments, not in fractions of an hour. Employees who worked for an employer on or before Feb. 5, 2007 begin to accrue paid sick leave on that date. Employees hired after Feb. 5, 2007, will begin to accrue paid sick leave 90 calendar days after the employee’s first day of work. Accrued paid sick leave does not expire; it carries over from year-to-year.
For employees who are not exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and California law, paid sick leave accrues on all hours worked, including overtime hours. For employees who are exempt from the overtime provisions of the FLSA and California law, paid sick leave will accrue a 40-hour work week, unless the employee’s regular work week is less than 40 hours. In instances where there is evidence that the employee’s regular work week is less than 40 hours, paid sick leave will accrue based upon that regular work week.
For employers who have fewer than 10 persons working for compensation during a given week, there is a cap of 40 hours of accrued paid sick leave. For employees of other employers, there is a cap of 72 hours of accrued paid sick leave. However, the accrued paid sick leave caps are for a given point in time. They are not annual caps and there is no cap on how much paid sick leave an employee may use in a year.
For the purpose of calculating employer size, all persons performing work for the employer during a given week are counted, whether or not the persons work in San Francisco. Similarly, employees performing work in different locations operated by the same employer are all counted as employees of the employer.
Employer Obligations
Employers must post a notice informing employees of their rights in a location where employees can read it easily. Employers must retain records documenting hours worked by employees and paid sick leave taken by employees, for a period of four years, and shall allow San Francisco’s Office of Labor Standards Enforcement (OLSE) access to such records.
Employee Rights
Employees who are denied their rights under the law may file a complaint with OLSE. Employees who assert their rights to receive paid sick leave are protected from retaliation.
Legal Implications of Ordinance
In addition to the obligations of providing notice of the paid sick leave and retaining records of hours worked and paid sick leave taken, an employer faces additional legal challenges. For example, an employer who disciplines an employee for work-related performance issues after the employee has been paid for sick leave under the Ordinance will face yet another basis for a claim of retaliation. Similarly, because there is no annual cap on the paid sick leave allowed for each employee, there is a potential for abuse of the benefit. This situation will make the already complicated personnel decisions related to medical leave and disability laws even more difficult to navigate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
