ALL EMPLOYEES WHO WORK IN SAN FRANCISCO ARE ENTITLED TO PAID SICK LEAVE

On November 7, 2006, San Francisco voters approved Measure F, a city ordinance that requires employers to provide paid sick leave to all employees who work in the geographic boundaries of San Francisco. The ordinance takes effect February 5, 2007.

Who is covered?

This new ordinance applies to all employers who directly or indirectly employ or exercise control over the wages, hours, or working conditions of at least one person who is employed in the geographic boundaries of San Francisco. The ordinance covers all employees who work in the geographic boundaries of San Francisco, regardless of whether they are full-time, part-time, permanent, or temporary. It even applies to employees who work through a temporary services or staffing agency.

Employees who are working for the employer on or before February 5, 2007 must begin accruing sick leave under the ordinance on February 5, 2007. Employees hired after that date must begin accruing their sick leave within 90 days after they start working.

How much paid sick leave must be provided?

The ordinance mandates that covered employees be provided at least one hour of sick leave for every 30 hours worked. However, for small businesses (those with fewer than 10 employees), accrued sick leave can be capped at 40 hours (5 days). For all other employers, accrued sick leave can be capped at 72 hours (9 days).

The ordinance states that accrued sick leave carries over from year to year but is limited to the aforementioned caps. Also, paid sick leave only accrues in one-hour increments. There are no fractions of hours of accrued leave under the ordinance.

Does the ordinance specify how employees must be allowed to use their sick leave?

Yes. Employees must be allowed to use all or any part of their sick leave for their own illnesses, injuries, medical care, treatment, or diagnosis, and also to care for any of the following people when they are ill or injured or receiving medical care, treatment, or diagnosis: a child, a parent, a legal guardian or ward, a sibling, a grandparent, a grandchild, a spouse, a registered domestic partner, or a "designated person."

San Francisco employers should note that the provisions of this ordinance are much broader than current California state law. Current California law requires employers to allow employees to use up to one-half of their annual sick leave accrual for so-called "kin care." Under the San Francisco ordinance, an employee must be allowed to use all of his or her accrued sick leave to care for an ill relative or domestic partner. In addition, the San Francisco ordinance says that if an employee has no spouse or registered domestic partner, the employee may designate one person as to whom the employee may use paid sick leave.

Employees must be given an opportunity to designate this person no later than the date on which they have accrued their first hour of sick leave under the ordinance, and they must be given at least a 10-day window in which to make the designation. Employees also must be given an opportunity once a year (with a similar 10-day window) to change their designation.

The ordinance also says that an employer may not require, as a condition of an employee taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave. However, employers may require "reasonable" notice of use of paid sick leave, and may take "reasonable measures" to verify that the use of paid sick leave is lawful. (The ordinance does not specify what would be considered "reasonable" notice or "reasonable measures".)

Do employers have to pay employees for their accrued sick leave when they quit or are terminated?

No. An employer is not required to provide financial or other reimbursement to an employee upon the employee's termination, resignation, retirement, or other separation from employment for accrued paid sick leave that the employee has not used.

Does the ordinance impose any other requirements?

Yes. The ordinance also prohibits employers or any other person from retaliating against any person for exercising any rights under the statute. The ordinance also makes it unlawful for an employer's absence control policy to count any paid sick leave taken under the provisions of the ordinance as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

The ordinance directs the San Francisco Office of Labor Standards Enforcement to develop a poster informing employees of their rights under the ordinance. Employers are required to post the poster in a conspicuous place in the workplace.

Employers must also maintain records about paid sick leave for four years. In the event of any dispute with an employee, if the employer has failed to maintain these records, he will be presumed to have violated the law.

Are there any exceptions?

Yes. If an employer has a paid leave policy, such as a PTO policy that makes available an amount of paid leave that may be used for the same purposes as sick leave under the ordinance, the employer is not required to provide additional paid sick leave.

Also, employees who are covered by a bona fide collective bargaining agreement can waive all or any part of the requirements of the ordinance in the collective bargaining agreement. However, any such waiver in a collective bargaining agreement must be in clear and unambiguous terms.