On September 1, 2020, the Board of Supervisors in San Francisco unanimously passed an emergency ordinance providing temporary protections to employees related to COVID-19.
What are the details?
The ordinance covers an “employer” as a person, as defined in Section 18 of the labor code, including corporate officers or executive, who directly or indirectly, employs, contracts with, or hires a worker.
A “worker,” as defined under the ordinance, includes any person providing labor or services for pay within the geographic boundaries of San Francisco who is either: (1) an employee under California Labor Code section 2750.3 (including a part-time or temporary employee), or (2) an independent contractor or other person who has performed at least 16 hours of labor or services for the employer, provided personally by the individual, independent contractor or other person based on the intellectual or manual efforts of the individual rather than the sale of product.
An “applicant” is a person who has applied, may apply or otherwise seeks to provide services for pay as a worker for an employer, including an employer’s former workers being considered for employment or contracting after furlough, layoff, or other separation.
The ordinance makes it unlawful for an employer to:
- Discharge, threaten to discharge, demote, suspend, discipline, reduce employee benefits, or in any manner discriminate or take adverse action against any worker who is absent from or unable to work, or who requests time off work because the worker tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure (“COVID-19-related reasons”) without regard to whether the worker would otherwise be eligible to take paid or unpaid leave under any employer benefit program or other local, state, or federal protection;
- Count a worker’s absence from or inability to work for any of the above COVID-19-related reasons as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action without regard to whether the worker would otherwise be eligible to take paid or unpaid leave; or
- Take any adverse action against a worker because the worker tested positive for COVID-19 or is perceived to have been infected with COVID-19 without regard to whether the worker takes paid or unpaid leave; provided, however, that an employer shall not allow a worker who is experiencing any sign or symptom of COVID-19, or who has confirmed or suspected COVID-19 infection, to return to work onsite until the worker may do so consistent with the Local Health Officer’s return-to-work guidance.
If an employer takes an adverse employment action against a worker within 90 days of their absence or request for time off for COVID-related reasons, there will be a rebuttable presumption that the adverse action was taken in violation of this ordinance. Employers may rebut the violation by establishing a basis for the adverse action, like cases of worker performance or misconduct.
Employers may also not rescind an offer to employ or contract an applicant, based in whole or in part of their knowledge that the applicant tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure. If an applicant is unable to start work because the applicant tested positive for COVID-19 or is isolating or quarantining due to COVID19 symptoms or exposure, an employer must, where reasonably feasible, accommodate the applicant by scheduling a later start date.
It is unlawful for employers to restrain or deny the exercise of rights under this ordinance. Employers must not take adverse action against any worker or applicant in retaliation for exercising rights under the ordinance, which includes requesting or taking leave.
The ordinance is set to expire in 61 days (October 31, 2020) unless re-enacted by the Board.
The ordinance can be found here.
What do employers need to do?
Employers in San Francisco should immediately change their hiring practices to include procedures regarding delayed starting dates. Employers should be aware of these temporary employee rights and be sure to have verifiable records before taking employment actions against employees.