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On February 9, 2021, the San Francisco Board of Supervisors voted to extend the time period for employees to use San Francisco Public Health Emergency Leave. The Board first enacted the Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020, and has continued to extend it for subsequent periods of approximately 60 days each extension. The mayor has approved each of the prior extensions and must approve this one as well. If she does, the ordinance will expire 61 days later.

The ordinance applies to employers with 500 or more employees nationally. Similar to the reasons for which employees can take leave under the federal Families First Coronavirus Response Act, eligible employees can take PHELO leave for the following reasons:

  • “The Employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19.”
  • “The Employee has been advised by a health care provider to self-quarantine.”
  • “The Employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
  • “The Employee is caring for a Family Member who is subject to an order as described in subsection (a)(1), has been advised as described in subsection (a)(2) above, or is experiencing symptoms as described in subsection (a)(3).”
  • “The Employee is caring for a Family Member if the school or place of care of the Family Member has been closed, or the care provider of such Family Member is unavailable, due to the Public Health Emergency.
  • “The Employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the [Families First Coronavirus Response] Act, by the United States Secretary of Health and Human Services.”

The extension amends the initial PHELO in the following ways.

First, the extension excludes certain nonprofit organizations from having to comply with the ordinance. However, nonprofit organizations are eligible for the exemption if they do not engage in healthcare operations, as the ordinance extension defines them. To be eligible, nonprofit organizations must maintain valid Internal Revenue Code § 501(c)(3) status.

Second, the extension eliminates the earlier ordinance’s provision allowing employees to take PHELO leave regardless of whether and when the employee is scheduled to leave. This means that employees now may use PHELO leave only for those times that the employer schedules the employee to work.

Finally, employers should keep in mind that the ordinance simply extends the period of time in which employees must use the mandated leave. The ordinance does not require an employer to replenish an employee’s PHELO leave account.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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Leaves of Absence/Reasonable Accommodation

Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

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