San Francisco Releases Proposed Implementation and Enforcement Rules for Revised Family Friendly Workplace Ordinance

On May 27, 2022, the San Francisco Office of Labor Standards Enforcement (OLSE) issued its “Proposed Rules Implementing the Family Friendly Workplace Ordinance (as amended).” The OLSE also issued a notice of proposed rulemaking. The city will be accepting public comments through June 16, 2022. The Family Friendly Workplace Ordinance (FFWO) applies to employers with twenty or more employees and takes effect on July 12, 2022.

The city’s Board of Supervisors initially passed the FFWO on October 8, 2013, and it became effective January 1, 2014. The Board of Supervisors substantially revised the FFWO on March 14, 2022, imposing mandatory requirements on employers. The revised FFWO takes effect on July 12, 2022.

Under the amended FFWO, a covered employer must enter into a good-faith interactive process with an employee who requests a flexible or predictable work arrangement to assist with care for any of the following:

• a child or children under the age of eighteen;
• a person or persons with a serious health condition in a family relationship with the employee; or
• a person (age 65 or older) in a family relationship with the employee.

The FFWO requires that employers establish “undue hardship” in order to deny an employee’s request.

The proposed rules address various topics, including who constitutes a covered employer or covered employee, as well as the means by which an employer may verify an employee’s caregiving responsibilities.

The proposed rules also explain factors that the OLSE may consider when evaluating an employer’s “undue hardship.” Under the proposed rules, an employer would not need to “alter or impede [its] business operations in a manner that would cause significant expense or operational difficulty.” The proposed rules provide several examples of undue hardship, including an employee’s schedule request that would have a “detrimental effect” on the employer’s ability to meet customer demands, a request that would require the employer to pay overtime, or a request that would result in an employee working without needed supervision.

The OLSE has proposed administrative penalties of the greater of (1) no more than $50 per day for each day a violation occurred, or (2) “up to the cost of care the [e]mployee or person whose rights were violated incurred” as a result of the employer’s violating the employee’s rights. The OLSE also may impose the greater of (1) $50 per day for each day a violation occurred, or (2) “up to the [c]ity’s costs for the investigation and remedying [of] the violation.”

In addition to the proposed rules, the OLSE’s Family Friendly Workplace Ordinance webpage includes frequently asked questions (FAQs) about the FFWO, a sample employee FFWO request form, and an OLSE presentation explaining the FFWO.

Ogletree Deakins will continue to monitor and report on developments with respect to the proposed rules implementing the revised FFWO and will post updates on the firm’s California blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.