COVID-19 Legislation
State and Local
Emergency Paid Sick Leave Updates
San Francisco, CA Public Health Emergency Leave
On June 7 San Francisco voters approved Proposition G, which permanently adds Article 33P to the San Francisco Police Code and requires employers to make Public Health Emergency Leave (PHEL) available to their employees effective October 1, 2022. Below are the details outlined in the ordinance; future amendments or clarifications may come by way of regulations or ordinances adopted by the Board of Supervisors.
San Francisco Public Health Emergency Leave (PHEL) |
| October 1, 2022 (permanent) |
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All employers with 100 or more employees worldwide, including the City and County of San Francisco. -
Excludes the federal government and Non-Profit Organizations (as defined under 26 U.S.C. §501(c)(3)) if the majority of the annual revenue of the Non-Profit Organization is program service revenue that is not unrelated business taxable income under 26 U.S.C. §512, and the Non-Profit Organization does not engage in Healthcare Operations (as defined in the ordinance). |
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All employees who perform work within the geographic boundaries of the City and County of San Francisco.
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Excludes employees covered by a bona fide collective bargaining agreement if the CBA expressly waives the ordinance’s requirements in clear and unambiguous terms. |
| For the duration of a public health emergency*, PHEL must be made available to employees in the following amounts:
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From October 1 through December 31, 2022, employers must provide each employee who works a full-time, regular, or fixed schedule an amount of PHEL equivalent to the number of hours regularly worked in a one-week period, not to exceed 40 hours. Employees work a variable schedule will be eligible for PHEL in an amount equal to the average number of hours over a one-week period that the employee worked or took paid leave during the previous calendar year, or since the employee’s start date if later, not to exceed 40 hours. -
Beginning January 1, 2023, and each January 1 thereafter, employees who work a full-time, regular, or fixed schedule are entitled to an amount of PHEL equivalent to the number of hours regularly worked in a two-week period, not to exceed 80 hours. Employees who work a variable schedule will be eligible for PHEL in an amount equal to the average number of hours over a two-week period that the employee worked or took paid leave during the previous calendar year, or since the employee’s start date if later, not to exceed 80 hours. * A “public health emergency” is defined as a local or statewide health emergency related to any contagious, infectious, or communicable disease, declared by the City’s or County’s local health officer or the state health officer pursuant to the California Health and Safety Code, or an Air Quality Emergency (when the Bay Area Air Quality Management District issues a Spare the Air Alert). |
| An employee may use PHEL during a public health emergency if the employee is unable to work due to any of the following: -
The recommendations or requirements of an individual or general federal, state, or local health order (including an order issued by the local jurisdiction in which an employee resides) related to the public health emergency*. -
The employee has been advised by a healthcare provider (as defined under FMLA) to isolate or quarantine*. -
The employee is experiencing symptoms of and seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the public health emergency. -
The employee is caring for a covered family member to whom numbers 1 through 3 above apply. -
The employee is caring for a covered family member if the school or place of care of the family member has been closed, or the care provider of the family member is unavailable, due to the public health emergency. -
An Air Quality Emergency (i.e., when the Bay Area Air Quality Management District issues a Spare the Air Alert), if the employee is a member of a vulnerable population and primarily works outdoors*.
An employee is a member of a vulnerable population if they have been diagnosed with heart or lung disease; have respiratory problems including but not limited to asthma, emphysema, and chronic obstructive pulmonary disease; are pregnant; or are age 60 or older. * An employee may not use PHEL for reasons 1, 2 or 6 if the employee is able to telework without increasing their exposure to disease or unhealthy air quality.
PHEL must be available for immediate use for the purposes above, as applicable, regardless of how long the employee has been employed by the employer, the employee’s status (as full-time, part-time, permanent, temporary, seasonal, salaried, paid by commission, or any other status), or any other consideration pertaining to the employee, except that…
An employer of an employee who is a healthcare provider (as defined under FMLA) or an emergency responder* may elect to limit such an employee’s use of PHEL, unless the employee’s inability to work is due to one of the following reasons:
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The employee has been advised by a healthcare provider to isolate or quarantine**. -
The employee is experiencing symptoms of and is seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the public health emergency and does not meet federal, state, or local guidance to return to work. -
If the employee is a member of a vulnerable population (defined above), primarily works outdoors, and has been advised by a healthcare provider not to work during an Air Quality Emergency**. * An “emergency responder” is defined as someone whose work involves emergency medical services, including but not limited to emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, 911 operators, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a Public Health Emergency.
** An employee who is a healthcare provider or emergency responder may not use PHEL for reasons 1 or 3 if the employee is able to telework without increasing their exposure to disease or unhealthy air quality.
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| The definition of family member is the same as under the San Francisco Paid Sick Leave law (see SF Admin. Code §12W.4(a)). |
| For exempt employees, pay for PHEL should be calculated in the same manner as the employer calculates wages for other forms of paid leave.
PHEL pay for non-exempt employees should be calculated:
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in the same manner as the regular rate of pay for the workweek in which the employee uses PHEL, whether or not the employee works overtime in that workweek; or -
by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the 90 days of employment prior to the employee’s use of PHEL. PHEL may not be paid at a rate lower than the San Francisco Minimum Wage.
PHEL must be paid no later than the payday for the next regular payroll period after the leave is taken.
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| An employer may require the employee to follow reasonable notice procedures in order to use PHEL, but only when the need for leave is foreseeable.
An employer may not:
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require that PHEL be taken in increments of more than one hour; -
require, induce, or encourage the employee, to use other accrued paid leave provided by the employer to the employee before the employee uses PHEL; -
require the disclosure of health information for use of PHEL, except to confirm an employee’s status as a member of a vulnerable population if that employee uses PHEL for a use inapplicable to someone who is not a member of a vulnerable population; -
require an employee search for or find a replacement worker to cover the hours during which the employee is taking PHEL; -
interfere with, restrain or deny any employee from exercising their rights under the ordinance.New List Item |
| Carryover of an employee’s unused PHEL from year to year is not required. |
| PHEL is in addition to any other paid leave offered to employees; however: -
During 2022, if (1) an employer voluntarily extended additional paid leave or paid time off that employees may use for the same reasons covered by this ordinance’s requirements and that paid leave remains in effect on or after October 1, 2022, or (2) the statewide COVID-19 Supplemental Paid Sick Leave requirements are extended beyond September 30, 2022, an employer may reduce the allocation of PHEL under this ordinance for every hour an employee takes such paid leave after October 1, 2022. -
During 2023 and subsequent years, if an employer is required by federal, state, or city law to provide paid leave to address a public health threat, which employees may use for the same reasons covered by this ordinance’s requirements, the employer may reduce the allocation of PHEL under this ordinance for every hour of such paid leave the employer is required to provide. |
| The Office of Labor Standards Enforcement (OLSE) will be publishing a model notice in English, Spanish, Chinese, Filipino, and any other language spoken by more than 5% of the San Francisco workforce, for employers to utilize to inform employees of their rights to PHEL. As of today the notice has not yet been posted on OLSE’s Workplace Postings webpage (and may be combined with the San Francisco Paid Sick Leave notice).
Employers must post the notice conspicuously in all languages OLSE makes available at any job site where its employees work and, where feasible, by providing it to employees via electronic communication, which may include email, text, and/or posting on the employer’s web- or app-based platform.
The amount of PHEL available must also be included on the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. If an employer provides unlimited paid leave or paid time off, the employer may satisfy this requirement by indicating “unlimited” on the employee’s itemized wage statement or notice. (This is similar to notice requirements under statewide COVID-19 Supplemental Paid Sick Leave and accrued Paid Sick Leave, see CLC §246(i))
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| Records documenting hours worked and PHEL taken by employees must be retained for a period of four years. |
Colorado Healthy Families and Workplaces Act and Public Health Emergency Leave
Colorado’s Public Health Emergency Leave (PHEL), a component of the Healthy Families and Workplaces Act (HFWA), was implemented effective January 1, 2021, as part of the state’s response to COVID-19. The law requires that, during a public health emergency, an employer must supplement the paid time an employee has accrued under HFWA with up to 80 hours of PHEL to use for reasons associated with the public health emergency.
PHEL requirements remain in effect until the expiration of “any and all” public health emergency declarations, and employees may take PHEL until four weeks after the end of the public health emergency period. On July 15 the national public health emergency determination was renewed, and will likely remain in place for at least another 90 days.
The Colorado Department of Labor and Employment (CDLE) recently released an updated version of Interpretive Notice & Formal Opinion (“INFO”) #6B, which provides guidance around HFWA and PHEL entitlements. The updated notice clarifies that:
“As of January 1, 2021, all employers in the state are required to provide this PHE-related supplement, distinct from any COVID-related leave they had to provide in 2020. The requirement to provide COVID-related PHE leave remains in effect in 2022 because of continuous, still-ongoing COVID-related PHE declarations.
This COVID-related supplemental leave does not renew (on the first of the year or any other time). Because the supplement is provided only once per PHE, if an employer has already provided all COVID-related supplemental leave an employee is entitled to, it need not provide that employee additional COVID-related supplemental leave for the duration of the COVID PHE. But employees continue to have access to any unused, supplemental COVID-related leave they were provided on or after January 1, 2021.”
INFO #6B also includes guidance around the carryover provisions for time accrued under HFWA (non-PHEL time). The HFWA law text states that an employee may carry over up to 48 hours of accrued but unused HFWA hours from one year to the next, but that employers may limit the amount of time used in the new year to 48 hours. INFO #6B includes carryover scenarios, one of which indicates that an employee’s accrual may halt in the following year as long as they have 48 hours available for use in that year:
“Example 2: An employee earns 48 hours of accrued leave in a benefit year, and uses 8 of those hours during the year. This means that (A) 40 hours of unused, accrued leave “carry forward” and the employee can use these 40 hours in the next benefit year, and (B) the employee will continue to earn accrued leave, up to an additional 8 hours (for 48 hours total), during the benefit year. Another employee earns 48 hours of accrued leave in a benefit year, and uses none of those hours; so, 48 hours “roll over” for use in the next benefit year, and the employee doesn’t earn any more accrued leave during that year, because they have already been provided with 48 hours for the benefit year.”
Employers must provide written notice of employees’ rights and responsibilities under HFWA/PHEL. Notification requirements are outlined on page 8 of INFO #6B (located here). Providing INFO #6B to employees satisfies the individual notice requirement; the model worksite poster may be found on CDLE’s Posters webpage (see ‘Colorado Paid Leave & Whistleblower Poster’, updated June 1).
Please see our side-by-side comparison for details on the Emergency Paid Sick Leave laws.
Other COVID-19 Legislation
New York Vaccination Leave Extension
On June 28 the governor of New York signed AB9513, extending COVID-19 Vaccination Leave entitlement from December 31, 2022, to December 31, 2023. (Please see our December 3, 2021 Statutory Update and prior posts for more details.)
Non-COVID-19 Legislation
State and Local
Paid Sick Leave Updates
Bloomington, MN Earned Sick and Safe Leave
On June 6 the Bloomington, Minnesota City Council approved the Earned Sick and Safe Leave Ordinance (Ord. No. 2022-31), adding Chapter 23 to the City Code. Below is a summary of the ordinance’s provisions and requirements.
Bloomington, MN Earned Sick and Safe Leave |
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| All employers with 1 or more employees.
Excludes the federal government, the State of Minnesota (including any office, department, agency, authority, institution, association, society, or other body of the state, including the legislature and the judiciary), and any county or local government, except the City of Bloomington.
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| All employees who perform work at a location or locations within the geographic boundaries of the city for at least 80 hours in a year.
Excludes independent contractors, student interns, and employees classified as extended employment program workers as defined in MN Rules Pt. 3300.6000 and participating in the MN Stat. §268A.15 extended employment program;
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| Employees will accrue a minimum of 1 hour of sick and safe time for every 30 hours worked within the geographic boundaries of the city, beginning the later of July 1, 2023, or date of hire. Time accrues only in 1-hour increments, not fractions of an hour. -
For employees of employers with 5 or more employees nationwide, accrued time is paid; -
For employees of employers with fewer than 5 employees nationwide, accrued time is unpaid (employers may choose to provide paid time). Employees may not accrue more than 48 hours of sick and safe time in a calendar year unless the employer agrees to a higher amount.
Exempt employees are deemed to work 40 hours in each work week, except that an employee whose normal work week is less than 40 hours will accrue time based upon their normal work week.
Frontloading: As an alternative to accrual, employers may provide at least 48 hours of sick and safe time following the initial 90 days of employment for use by the employee during the first calendar year and providing at least 80 hours of sick and safe time beginning each subsequent calendar year.
Carryover: Accrued but unused sick and safe time carries over into the following year. The total amount of accrued but unused sick and safe time for an employee may not exceed 80 hours at any time, unless an employer agrees to a higher amount.
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| An employee may use accrued sick and safe time for: -
The employee’s mental or physical illness; injury; health condition; need for medical diagnosis; care, including prenatal care; treatment of a mental or physical illness, injury, or health condition; or need for preventive medical or health care. -
The care of a family member with a mental or physical illness, injury, or health condition who needs medical diagnosis, care including prenatal care, treatment of a mental or physical illness, injury, or health condition; who needs preventive medical or health care; or the death of a family member. -
An absence due to domestic abuse, sexual assault, or stalking of the employee or employee's family member, provided the absence is to: (a.) seek medical attention or psychological or other counseling services related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking; (b.) obtain services from a victim services organization; (c.) seek relocation due to domestic abuse, sexual assault, or stalking; or (d.) seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking. -
The closure of the employee's place of business by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency. -
To accommodate the employee's need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency. -
To accommodate the employee's need to care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure. |
| An employee's child, stepchild, adopted child, foster child, adult child, spouse, sibling, parent, stepparent, mother-in-law, father-in-law, grandchild, grandparent, guardian, ward, or member of the employee's household. |
| Sick and safe time must be paid at the greater of the employee’s regular rate of pay, or the state minimum wage.
Construction industry employees: An employer may opt to satisfy the ordinance’s requirements for construction industry employees by: (1) Paying at least the prevailing wage rate as defined by MN Stat. §177.42 and as calculated by the Minnesota Department of Labor and Industry; or (2) Paying at least the required rate established in a registered apprenticeship agreement for apprentices registered with the Minnesota Department of Labor and Industry
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Employees are entitled to use accrued sick and safe time beginning 90 calendar days following commencement of their employment. After 90 calendar days of employment, employees may use sick and safe time as it is accrued. Note: The ordinance does not specify a maximum number of hours that an employee may use accrued time in a calendar year. -
An employer must allow an employee to use sick and safe time in increments consistent with current payroll practices as defined by industry standards or existing employer policies, provided such increment is not more than 4 hours. -
An employer is only required to allow an employee to use accrued time when the employee is scheduled to perform work within the geographic boundaries of the city. An employer may allow use of accrued sick and safe time when an employee is scheduled to perform work for the employer outside of the city. -
If the need for use is foreseeable, an employer may require advance notice of the intention to use sick and safe time, not to exceed 7 days. If the need is not foreseeable, an employer may require an employee to give notice of the need for sick and safe time as soon as practicable. -
An employer may require reasonable documentation for more than 3 consecutive days of sick and safe time used for reasons number 1, 2 and 3(a) above, but only if the employer provides health insurance benefits to the employee. -
A health care provider may only use sick and safe time when the health care provider has been scheduled to work. A health care provider has not been “scheduled to work” for shifts for which they choose to call in and request a shift occurring within 24 hours, or for shifts for which they have only been asked to remain available or on call, unless they have been asked to remain on the employer's premises. A “health care provider’ is defined as a person licensed in good standing in Minnesota to provide medical or emergency services and employed in that capacity, including but not limited to doctors, nurses and emergency room personnel. -
Employers may not interfere with, restrain or deny any employee from exercising their rights under the ordinance. |
| Employers are 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 sick and safe time that has not been used.
If an employee is rehired within 120 days of termination, previously accrued sick and safe time that had not been used or paid out upon separation from employment must be reinstated. An employee is entitled to use accrued sick and safe time and accrue additional sick and safe time at the commencement of reemployment.
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| Employers must conspicuously post a notice informing employees of their rights to sick and safe leave, in English and any language spoken by 5% of employees at the workplace. By July 1, 2023, the City Attorney’s Office will publish a model notice in several languages for employers to utilize for this purpose.
An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under the ordinance.
Upon request by an employee, the employer must provide, in writing or electronically, information stating the employee's then-current amount of used and available sick and safe time. Employers may choose a reasonable system for providing this notification, including, but not limited to, listing information on each pay stub or developing an online system where employees can access their own information.
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| An employer must maintain accurate records for each employee showing: -
for non-exempt employees, hours worked; -
hours of leave available for sick and safe time purposes; and -
hours of leave used for sick and safe time purposes. Records must be retained for a period of not less than 3 years in addition to the current calendar year. |
New Mexico Healthy Workplaces Act Rules
Beginning July 1 New Mexico employees were to start accruing one hour of paid sick and safe leave for every 30 hours worked under the state’s Healthy Workplaces Act (HWA). Late last month the New Mexico Department of Workforce Solutions (NM DWS) issued final rules around the law’s requirements; the rules provide clarification on several topics, including:
- Calculation of hours worked during a week in which paid sick time is used by a variable schedule or per diem employee (11.1.6.8(C) and (D)).
- Rate of pay for salaried, tipped, piecework and commission employees (11.1.6.8(H)-(J)).
- Carryover limit (64 hours per year) (11.1.6.8(L)).
- Documentation requirements (may be requested for absences exceeding two days; employee must be allowed 14 days of return from leave to provide) (11.1.6.8(M)).
- Employers are permitted to choose how to measure when the “year” for accrual, use, and carryover begins and ends: (1) calendar year; (2) other 12-month period, such as fiscal year or employee’s anniversary; (3) 12-month period beginning the date an employee first uses accrued leave; or (4) 12-month period measured backward from the date an employee used accrued leave (HWA Guide, p3). Employers may elect a different 12-month period for benefits to be used for employees covered by a collective bargaining agreement than for employees not covered by a collective bargaining agreement (11.1.6.8(N)).
- Notice to employees: In addition to posted and individual notice requirements (the model poster/notice can be found here), employers must provide employees with an accurate year-to-date written summary of earned sick leave accrued and used at least once every calendar quarter. This may be done electronically, including by email, website, mobile application or other reasonable method. Employers may comply by including this information on pay records or earnings statements provided to employees according to their normal pay schedule (11.1.6.8(G)). The requirement of this summary was not included in the original law.
- Process for violation complaints and investigations (11.1.6.9; 11.1.6.11 through 11.1.6.28).
Note: The HWA Guide states that there is no maximum number of hours an employee may accrue during a given year*, only the 64-hour maximum on use (and the rules’ 64-hour limit on carryover). If an employer chooses to frontload time at the beginning of each year, that amount may be no less than 64 hours – employers who frontload must still monitor employee hours worked. If an employee works more than 1,920 hours in a year, that employee must receive the appropriate number of accrued sick leave hours, which would be more than the 64 hours they were frontloaded.
* For the purposes of accrued paid sick and safe leave, salaried/FLSA-exempt employees are assumed to work forty hours per week unless their normal workweek is less than forty hours, in which case leave accrues based on their normal workweek.
More information on HWA may be found in our May 14, 2021 Update, as well as on NM DWS’ Paid Sick Leave webpage.
Puerto Rico Minimum Wage, Vacation and Sick Leave Act Amendment
Note: The changes implemented by Law 41-2022 outlined below were nullified by a March 2023 court ruling; please see our May 25, 2023 Update for details.
On June 20 the governor of Puerto Rico signed PC1244 (now Law 41-2022*), which reverses some employment law changes previously made by the by the Labor Transformation and Flexibility Act (LTFA) in 2017. Among the changes are a few to the Minimum Wage, Vacation and Sick Leave Act (Act No. 180-1998):
- Reduction in the eligibility threshold for non-exempt employees’ sick leave and vacation time from 130 hours per month to 115 hours per month (return to the pre-LTFA threshold).
- Increase in vacation time entitlement for employees working 115 hours or more per month from 6 to 15 days per year based on years of service to 15 days per year, at a rate of 1¼ days per month (return to the pre-LTFA entitlement). Sick leave accrual remains 1 day per month.
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- Employees of small employers (12 or fewer employees) accrue ½ day of vacation time and 1 day of sick leave per month.
- Addition of paid leave for employees who work at least 20 hours per week, but fewer than 115 hours per month. These employees will accrue ½ day of vacation time and ½ day of paid sick leave each month.
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- Employees of small employers (12 or fewer employees) accrue ¼ day of vacation time and ½ day of sick leave per month.
These changes are effective July 20, 2022, except that businesses that generate a gross income of less than $10,000,000 each year and have 50 employees or fewer have until September 18 to comply.
* As the law’s text is only available in Spanish, we relied upon the expertise of representatives of Littler Mendelson P.C. for the information above. Please see the following articles for more information:
Paid Family and Medical Leave Updates
District of Columbia Paid Family and Medical Leave (DC PFML) Updates
On July 13 the mayor of the District of Columbia signed the Fiscal Year 2023 Budget Support Emergency Act of 2022 (B24-0845/D.C. Act 24-470)*, which includes formalization of the following changes to DC PFML:
- Removal of the one week waiting period for claims filed on or after July 25, 2022.
- Increased maximum length of entitlement for each type of leave, as outlined below. This change applies to claims filed on or after October 1, 2022, and is in accordance with the Office of the Chief Financial Officer’s certification issued on March 1 (see our March 25 Update for more details).
| | Effective October 1, 2022 |
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Combined Maximum (per 52-week period) | | |
* As emergency legislation, this Act will be in effect for 90 days (until October 11, 2022). Permanent legislation featuring the DC PFML changes, the Fiscal Year 2023 Budget Support Act of 2022 (B24-0714), is with the mayor for signature.
Oregon Paid Family and Medical Leave (OR PFML) Updates
- The Oregon Employment Department (OED) has unveiled an updated Paid Leave Oregon website: paidleave.oregon.gov. The revamped Employer and Employee pages include links to new resources such as FAQ and Fact Sheets.
- On July 18 OED released a bulletin addressing some recent developments:
- Oregon employers will soon begin using Frances Online, OED’s new system replacing the Oregon Payroll Reporting System (OPRS) and the Employer Account Access (EAA) portal.
- Frances Online will be used to file payroll taxes, including Unemployment Insurance, starting with Q3 2022 filings.
- The new system will also be the portal through which employers will be able to:
- apply for approval of a private plan offering OR PFML benefits in lieu of the state program (beginning September 6, 2022)*; and
- submit OR PFML reporting and remit contributions (Q1 2023).
* See the Equivalent Plan Fact Sheet for more details. OED will be releasing more information next month, including an equivalent plan guidebook.
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- In September 2023 individuals will utilize Frances Online to file and track OR PFML claims.
- Resources for employers, including frequently asked questions and file specifications, may be found at Francesinfo.oregon.gov.
- Contributions toward the OR PFML program begin January 1, 2023. Employers must also provide written notice to employees outlining their rights and responsibilities under the law. As noted above, the Paid Leave Oregon website includes Fact Sheets on various topics, but it is anticipated that an official model notice will be provided.
Rhode Island TDI/TCI Weekly Benefit Maximum Increase
Effective July 1, 2022 the weekly benefit maximum for Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI) increased from $887 to $1,007 ($1,359 with the dependency allowance); the minimum weekly benefit remains $114.
Other News
San Francisco, CA Family Friendly Workplace Ordinance Amendment
San Francisco’s Family Friendly Workplace Ordinance (FFWO), originally effective on January 1, 2014, granted employees the right to seek “flexible or predictable working arrangements” to assist them with their responsibilities in caring for a child under 18, a family member with a serious health condition, or a parent age 65 or older.
Effective July 12, 2022, Ordinance No. 39-22 expanded the scope of the FFWO so that eligible care recipients now include any person age 65 or older who is in a family relationship with the employee, rather than being limited to the employee’s parent. “Family relationship” includes relationships by blood, legal custody, marriage, or domestic partnerships (as defined in SFAC Ch. 62 or CFC §297) to another person as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent.
A revised work arrangement may take the form of a change in the employee’s terms and conditions of employment as they relate to:
- the number of hours the employee is required to work (e.g., part-time work, part-year employment, or job sharing arrangements);
- the employee’s work schedule (e.g., modified hours, variable hours, predictable hours, or other schedule changes or flexibilities);
- the employee’s work location (e.g., telework); or
- the employee’s work assignments or duties.
Employees must submit a request for a revised work arrangement to the employer in writing, to which the employer is required to respond within 21 days of receipt. If the employer grants the request they must do so in writing. If the employer does not agree with the arrangement as requested, they must engage the employee in an interactive process to attempt to determine an arrangement that is acceptable to both parties. Employers may only deny a request if they can demonstrate that such an arrangement would cause undue hardship, and must provide a detailed response to this effect to the employee in writing. At that time the employee may request reconsideration, and may also file a complaint with the Office of Labor Standards Enforcement (OLSE).
The ordinance applies to employers with 20 or more employees nationwide, though its requirements may be waived in a collective bargaining agreement if expressly stated.
Employees who regularly work* at least 8 hours per week within the geographic boundaries of the city or county of San Francisco are eligible after they have been employed by the employer for at least 6 months. OLSE may exempt certain employees working in public safety or public health functions, upon the employer’s request.
* Work includes telework from the employee’s residence or other location that is not an office or worksite of the employer if the employer maintains an office or worksite within the geographic boundaries of the city or county of San Francisco at which the employee may work, or prior to the 22 COVID-19 pandemic was permitted to work. When determining where a remote employee is assigned for purposes of the FFWO, an employer should consider factors including, but not limited to, the location of the employee’s computer, manager, teammates or co-workers, personnel file, where the employee worked prior to beginning telework, and/or the employee’s proximity to the business location. See the FFWO rules for more information.
Employers are required to post a notice informing employees of their rights under the ordinance, in English, Spanish, Chinese, and any language spoken by at least 5% of the Employees at the workplace or job site. OLSE has posted an updated version of the model notice on its FFWO webpage.
Illinois Leave Law Updates
Bereavement Leave Expansion
On June 9 the governor of Illinois approved SB3120 (now Public Act 102-1050), amending the state’s existing Child Bereavement Leave Act and renaming it the Family Bereavement Leave Act effective January 1, 2023.
The Child Bereavement Leave Act currently provides that an employee* is entitled to up to 10 work days of unpaid leave for needs associated with the death of their child. The amendments include:
- Covered Family Members: Leave may also be used due to the death of the employee’s spouse, domestic partner (as defined), sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.
- Reasons for use (changes in italics):
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- To attend the funeral or alternative to a funeral of a covered family member;
- To make arrangements necessitated by the death of the covered family member;
- To grieve the death of the covered family member;
- To be absent from work due to:
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- a miscarriage;
- an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure;
- a failed adoption match or an adoption that is not finalized because it is contested by another party;
- a failed surrogacy agreement;
- a diagnosis that negatively impacts pregnancy or fertility;
- a stillbirth.
- To support the need for leave due to reasons 1 through 3 above, employers may request reasonable documentation such as a death certificate, obituary or written verification from a mortuary, funeral home, religious institution or government agency. For leave due to conditions under #4, the employer may request verification from an appropriate source (e.g., a healthcare provider, an adoption agency, or a surrogacy organization) recorded on a form to be provided by the Illinois Department of Labor. The employer may not require that the employee disclose the exact reason for leave.
- Leave must be completed within 60 days of the date the employee (1) receives notice of the death of a covered family member, or (2) experiences one of the events listed under #4 above.
- In the event of the death of more than one family member, an employee is entitled to a maximum of six weeks of bereavement leave in a 12-month period. However, an employee is not entitled to leave exceeding or in addition to the amount of leave permitted under FMLA.
* Employer and employee are as defined under FMLA.
Employee Sick Leave Act (Kin Care) Amendment
On May 13 the governor of Illinois signed SB0645 (now Public Act 102-0817), amending the state’s “Kin Care” law effective January 1, 2023.
Section 21 of the law currently states that “Nothing in this Act shall be construed to invalidate, diminish, or otherwise interfere with any collective bargaining agreement nor shall it be construed to invalidate, diminish, or otherwise interfere with any party’s power to collectively bargain such an agreement.” The amendment adds to this that the requirements under the Employee Sick Leave Act are to serve as the “minimum standard” in a negotiated CBA.
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