Effective September 11, 2020, employers in San Francisco face steep penalties if they take adverse action against workers who are absent or request time off because they test positive for COVID-19, or because they isolate or quarantine due to COVID-19 symptoms or exposure. The new ordinance offers job protections for job applicants and “workers,” which the ordinance defines broadly to include both “employees” (as already defined by the California Labor Code) and some independent contractors (who have performed at least 16 hours of labor or services for the employer). If a worker requests time off or is absent because of a positive COVID-19 test, or even just to isolate or quarantine due to COVID-19 symptoms or exposure, the employer cannot terminate, discipline, or otherwise take adverse action against the worker. These protections exist regardless of whether the worker is using paid or unpaid time off under another law or employer policy. If a job applicant can’t start work right away for any of the same reasons, the employer has to reasonably accommodate the applicant and set the start date further out. Employers can ask employees or applicants to identify the general basis for the absence or request for time off, but may not require the disclosure of health information or other documentation, such as a doctor’s note. Employers face administrative penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations. The ordinance expires on November 10, 2020, unless city government reenacts it beyond that date.
Tips: This is purely a job protection ordinance and does not offer workers additional paid sick time. If you’re a covered employer, you must grant workers job-protected time off for the reasons listed above. Carefully document the legitimate reasons for any terminations or discipline, which you should do anyway (but especially while this ordinance is in effect), because the ordinance creates a “rebuttable presumption” that any discipline or termination of an employee (or refusal to hire an applicant) within 90 days of absence or time off (or delaying the start of work) for the COVID-19-related reasons listed above must be because the employer violated the ordinance. In other words, the Office of Labor Standards Enforcement will automatically assume you terminated a worker or refused to hire an applicant in violation of the ordinance unless you can prove the discipline, termination, or refusal to hire was for legitimate reasons, such as poor performance or misconduct. Accurate and thorough documentation is crucial to avoiding the steep penalties imposed by the ordinance. Read the ordinance carefully, and contact your Vigilant Law Group employment attorney with questions.