Related Practices & Jurisdictions
Adding to seemingly ever-shifting paid sick leave requirements in different places, the San Francisco Office of Labor Standards Enforcement (OLSE) has issued updated guidance under the San Francisco paid sick leave ordinance. The City approved the nation’s first paid sick leave ordinance in 2007. The new changes warrant attention from San Francisco employers, as they include a further limit on when employers may request a medical note for an absence and guidance on the use of sick leave for COVID -19 reasons. They also coincide with California’s enactment of a new supplemental COVID-19 paid sick leave mandate, retroactive to January 1, 2022.
Employer Verification of Paid Sick Leave
In San Francisco, as well as elsewhere, a common employer question is when they can request a doctor’s note from employees who claim paid sick leave. Typically, San Francisco has allowed employers to request a note in some cases. The OLSE previously issued guidance to San Francisco employers concerning this question: “Policies or practices that require a doctor’s note or other documentation for the use of paid sick leave of three or fewer consecutive workdays shall be deemed unreasonable.”
The new guidance now requires an absence of at least six days. The agency views policies and practices requiring a doctor’s note or other documentation for an absence of five or fewer consecutive workdays as “unreasonable.” Employers may require doctor’s notes or other documentation when an employee uses paid sick leave for more than five consecutive workdays (whether full or partial days). However, if an employee uses paid sick leave for COVID-19 reasons and is not under a doctor’s care, the employer shall accept the employee’s attestation of the need for paid sick leave pursuant to current Center for Disease Control and Prevention guidelines.
According to the OLSE, this updated guidance is temporary. The agency thus may revert back to its original position whenever the declared COVID-19 public health emergency ends, or the OLSE otherwise amends its guidance further.
Use of Paid Sick Leave for COVID-19 Related Reasons
During the COVID-19 pandemic, the OLSE issued guidance on when employees may use paid sick leave. In addition to the other permitted uses ordinarily allowed under the San Francisco ordinance, the OSLE added that employees may use paid sick leave in the following situations:
Public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of COVID-19;
A COVID-19 vaccination appointment or vaccine side effects;
The employee’s business or a work location temporarily ceases operations in response to a public health order or other public official’s recommendation;
Care for a family member getting vaccinated, experiencing vaccine side effects, or who is not sick, but whom public health officials or healthcare providers have required or recommended isolate or quarantine; and/or
Care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to public health or other public official’s recommendation.
Eligibility for Paid Sick Leave
Now, in addition, the OLSE’s updated guidance clarified who is not eligible for San Francisco paid sick leave:
Employees who have been laid off by their employer are no longer eligible; other
Employees who have reduced their hours or eliminated cannot use paid sick leave to compensate for such reductions or eliminations. Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their reduced and remaining scheduled hours they are unable to work for qualifying reasons.
In addition to California’s new statewide supplemental COVID-19 paid sick leave mandate, employers in San Francisco should review their paid sick leave policies and practices to ensure compliance with the new local rules. Employers subject to state and local paid sick leave requirements must comply with both laws, including when local ordinances are more protective. Employers should consult with their employment law counsel to understand the legal requirements in order to assure compliance.
© 2022 ArentFox Ship LLPNational Law Review, Volume XII, Number 77