San Francisco’s paid sick leave ordinance goes into effect February 5, 2007
January, 2007
Are you ready? San Francisco's new law mandating that employers provide paid sick leave to their employees goes into effect February 5, 2007. The government agency charged with enforcing the law has yet to issue regulations providing guidance on the law and its enforcement. Until that guidance comes, the following should assist you in understanding the key requirements of the new law and how it may impact you.
Who it applies to: The new law applies to all employers who employ individuals within the geographic boundaries of San Francisco, including part-time and temporary employees. The law does not apply to the workers assigned to work outside San Francisco.
Amount of paid leave required to be given: Paid sick leave is accrued at a rate of 1 hour of paid sick leave for every 30 hours worked by an employee. Employers may adopt an accrual cap of 72 hours, after which further accrual stops. "Small businesses," those with fewer than 10 employees, may adopt an accrual cap of 40 hours of paid sick leave. New hires, employees starting after February 5, 2007, need not accrue hours until after completing an initial 90-day waiting period of employment. Employers cannot enforce a "use it or lose it" policy as accrued sick leave must carry over from year to year. However, unlike vacation pay, no payout of accrued and unused sick leave is required upon termination of employment.
Reasons an employee can use Paid Sick Leave: Employees are able to use any amount of their accrued paid sick leave for their own illness, injury, or to seek their own medical care, treatment, or diagnosis. Employees may also use paid sick leave to aid certain family members who are ill, injured, or seek medical care, treatment, or diagnosis. In addition to the family members covered by "kin-care" (spouse, child, parent, registered domestic partner, or child of a registered domestic partner) the ordinance also permits use of paid sick leave to aid the employee's sibling, grandparent, or grandchild, or a "designated person."
Enforcement: Both administrative enforcement through the San Francisco Office of Labor Standards Enforcement, and a right to bring civil actions against employers are provided for under the law. Remedies include but are not limited to administrative penalties equal to three times the amount of paid sick leave withheld from the employee (or $250 if greater), additional administrative penalties in certain circumstances, reinstatement, back pay, payment of any sick leave unlawfully withheld, interest, and attorney's fees and costs.
Retaliation: Employers are prohibited from discharging, threatening to discharge, demoting, suspending or in any manner discriminating or taking adverse action against any person in retaliation for exercising rights under the law. Significantly, the law contains specific provisions relating to retaliation, including a provision that a rebuttable presumption of retaliation will arise if an employee suffers an adverse employment action within 90 days after exercising any rights under the law (including filing a complaint, raising questions about the employer's compliance with the law, cooperating with any investigation, or prosecution of any alleged violations, and the like). Along these same lines, the law prohibits employers from counting paid sick leave as an absence leading to discipline, discharge, demotion, suspension, or any other adverse action.
Notice Requirements: The San Francisco Office of Labor Standards Enforcement has published a mandatory notice of rights for employers to post in San Francisco workplaces. If you have not already received your poster, you may obtain a copy on-line, under the form section, at: http://www.sfgov.org/site/olse_index.asp?id=49389
Record Keeping: Employers are required to retain records documenting hours worked and paid sick leave taken by employees for a period of four years. This is longer than the general California retention period of three years for pay and timekeeping records.
Actions To Take Now:
- Review your current sick leave policy to determine whether it complies with the new law. If your current policy is non-compliant or you have no policy, you must adopt or revise the policy by February 5, 2007.
- Ensure payroll and timekeeping procedures are prepared to account for paid sick leave beginning on February 5, 2007. Also, don't forget to account for the longer document retention requirements if you currently only retain records for three years.
- Decide whether to have a compliant paid sick leave policy limited to San Francisco workers, or to voluntarily extend the same paid sick leave entitlements to workers elsewhere if you have workers in other locations as well as in San Francisco.
- Educate your supervisors and managers regarding when and how employees are permitted paid sick leave.
- Require any temporary staffing agency you use for temporary employees, who work in San Francisco, be ready and willing to comply with the ordinance for workers dispatched to you. This is also good opportunity to review the terms of the agency contract to minimize liability risk to you.