Are employers required to provide paid sick leave to employees located in San Francisco, California?

Nov 18, 2014

Employers in San Francisco are subject to both local and state provisions regarding paid sick leave. The San Francisco Paid Sick Leave Ordinance, Chapter 12W of the San Francisco Administrative Code, requires all employers to provide sick leave to all employees, including temporary and part-time employees, who perform work in the city and county of San Francisco. Additionally, at the state level, California AB 1522 requires many employers in California to provide paid sick leave.

Paid Sick Leave Accrual

Under the San Francisco Paid Sick Leave Ordinance, paid sick leave began to accrue on Feb. 5, 2007, for employees who were working on or before that date. For employees hired after Feb. 5, 2007, paid sick leave begins to accrue 90 calendar days after the commencement of employment.

For every 30 hours worked, an employee accrues one hour of paid sick leave.

The law allows employers with fewer than 10 employees to set an accrual cap at 40 hours. Under this regulation, “employees” include all full-time, part-time and temporary employees. Other employers may cap paid sick leave accruals at 72 hours.

As an example, an employer with fewer than 10 employees could have a policy in place stating that if an employee has accrued 40 hours of leave in his or her paid sick leave bank, the employee will not accrue any additional paid sick time until he or she uses the available banked sick leave time. The employee’s accrual will begin once the accrued balance falls below 40 hours.

Employers may choose to provide greater sick leave benefits. An employee’s accrued unused sick leave carries over from year to year. An employer is not required to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement or other separation from employment.

Using Paid Sick Leave to Care for Others

Under the California state Kin Care law (Labor Code §233) employees can use only half of their annual accrued sick leave benefits to care for others, but the San Francisco ordinance allows employees to use all of their accrued sick leave. Also, the definition of “family member” is broader under the San Francisco ordinance than under California Labor Code §233. The state law includes only children, parents, spouses or domestic partners of the employee, but the San Francisco ordinance also includes siblings, grandparents, grandchildren and a designated person of the employee’s choice in lieu of a spouse or domestic partner. An employee has the opportunity to designate his or her choice in lieu of a spouse or domestic partner no later than the date on which the employee has worked 30 hours after paid sick leave begins to accrue. There is a window of 10 workdays for the employee to make the designation. Thereafter, the employee may make or change a designation on an annual basis. Note that the San Francisco ordinance defines child, parent, sibling, grandparent and grandchild relationships to include not only biological relationships but also relationships resulting from adoption, step relationships and foster care relationships. “Child” includes a child of a domestic partner and a child of a person standing in loco parentis.

Notice and Posting Requirement

Employers are required to post, in a conspicuous place at any workplace or job site where any employee works, the notice required by subsection (a) of the ordinance. Every employer is required to post the notice in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees at the workplace or job site.

Record-Keeping

Employers are required to retain records documenting hours worked by employees and paid sick leave taken by employees for a period of four years. When an issue arises as to an employee’s entitlement to paid sick leave, if the employer does not maintain or retain adequate records documenting hours worked by the employee and paid sick leave taken by the employee, or does not allow the Office of Labor Standards Enforcement reasonable access to such records, the employer will be presumed to have had violated the law, absent clear and convincing evidence otherwise.

Retaliation

Under the ordinance, employees who assert their rights to receive paid sick leave are protected from retaliation. The city can investigate possible violations, access employer records and enforce the paid sick leave requirements by ordering reinstatement of employees, payment of paid sick leave unlawfully withheld and penalties.

California Paid Sick Leave

In addition to the San Francisco Paid Sick Leave Program, effective July 1, 2015, all employers in California will need to offer sick leave under AB1522 California Paid Sick Leave—Healthy Workplaces, Healthy Families Act of 2014. San Francisco employers will have to comply with both the San Francisco and California laws. There are minor differences that employers will need to consider. For example, San Francisco is more generous in terms of the amount of sick leave and the accrual rate; California is more generous with respect to the rehire provision. Under the California Paid Sick Leave Act, if an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days must be reinstated. The employee is entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring.

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All of the content on this page, including content associated with Express Requests, is for informational purposes only and not for the purpose of providing legal advice. You should always contact your attorney to determine if this information, and your interpretation of it, is appropriate to your particular situation.

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