On May 7, 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) published revised rules related to the Paid Sick Leave Ordinance. As a reminder, the ordinance, which has been in place since 2007, requires San Francisco employers to provide paid sick leave to all employees working in San Francisco, including part-time employees, temporary employees and undocumented immigrant employees.
Employees must accrue at least one hour of paid sick leave for every 30 hours worked. Accrual begins after the first 90 days of employment. If the employer has fewer than 10 employees, maximum accrual is 40 hours. Maximum accrual for larger employers is 72 hours. Accrued time rolls over from year to year; however, hours in excess of the total allowed for employers of each size are forfeited. To determine the number of employees, the employer must count all employees, not just the ones who work in San Francisco.
Under the new rules, an employer may not require a doctor’s note or other documentation for the use of paid sick leave of three or fewer consecutive work days. This practice is considered unreasonable with two noted exceptions:
- An employer may request documentation to verify an employee’s absences when there’s a pattern or clear instance of abuse, even in absences of three or fewer days.
- Further, an employer may request documentation when an employee’s use of paid sick leave is used to attend an appointment.
The new rules clarify treatment of an employee who terminates employment prior to completion of the 90-day waiting period. If that employee returns to employment with the employer within one year, all prior days of employment shall count toward the employee’s new waiting period.
The ordinance applies to employees who perform work in San Francisco, including working from home. The new rules clarify that the ordinance only applies to employees who perform at least 56 hours of work in San Francisco within a calendar year. If an employee stops in the city for pickups or deliveries, all hours worked in the city are covered by the ordinance, including travel time between stops.
In regards to employer size, the OLSE has clarified that an employer’s size is based on the average number of employees in the previous calendar year. For new employers, their size will be based on the number of employees in the employer’s first 90 days.
Under the new rules, an exempt employee’s accrual is based on 40 hours worked per week unless evidence shows that the employee’s regular work week is less than 40 hours.
If the OLSE determines that an employer has failed to comply with the ordinance, they will send the employer a Notice of Preliminary Determination. The employer will have 15 days to pay the amount due or appeal the determination by requesting an OLSE Review Meeting. If the failure is related to retaliation, the employer will only have seven days to respond. The penalty for noncompliance is the dollar amount of paid sick leave owed to the employees multiplied by three or $250, whichever is greater. The penalty for retaliation is $50 per day per affected employee. Additionally, the OLSE may charge the employee up to $50 per day per impacted employee to compensate the city for its investigation costs.
The new rules were effective June 7, 2018.
Paid Sick Leave Revised Rules »