By Heather SagerJill Ripke, Brittany Sachs and Matthew Goldberg

The City and County of San Francisco recently enacted an emergency Ordinance, the text of which is available here, effective September 11, 2020, which prevents all employers from taking adverse employment actions (e.g., firing, threatening to fire, disciplining, or in any manner discriminating) against employees and independent contractors (collectively “Workers,” as defined in the Ordinance) related to absences caused by COVID-19. The Ordinance is effective for 60 days through November 10, 2020 (unless extended) and applies to any Worker who has tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure (a “COVID-19 Absence”). The Ordinance prevents adverse actions during or within 90 days of a COVID-19 Absence.

Employers may require a Worker to identify the general basis for the Worker’s absence from or inability to work, or the Worker’s request to take time off work, but may not require the disclosure of health information or other documentation (including but not limited to a doctor’s note).

The Ordinance also applies to an individual who has or may apply or otherwise seek to provide labor or services for remuneration as a Worker for an Employer, including an Employer’s former Worker being considered for employment or contracting following furlough, layoff, or other separation (“Applicant”). Employers may not rescind an offer to employ or contract with an Applicant, or make a decision to employ or contract with an Applicant, based on whether the Applicant tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure. If an Applicant is unable to start work because they tested positive for COVID-19 or is isolating or quarantining due to COVID-19 symptoms or exposure, the employer must reasonably accommodate the Applicant by scheduling a later start date where reasonably feasible.

The Ordinance does not protect Workers who are absent from or unable to work, or who request time off work, to care for a family member affected by COVID-19. However, other leaves under local, California, and federal law do provide anti-retaliation protections to employees that take leave under those laws to care for family members.

The Ordinance deputizes the San Francisco Office of Labor Standards Enforcement (OLSE) to review alleged violations on its own accord, as well as based on complaints by an Applicant or Worker. If the OLSE finds a violation it may order any appropriate relief, including the hiring of an Applicant, reinstatement of a Worker, and payment of lost wages to a Worker or Applicant. Further, the OLSE may order the payment of an additional sum as an administrative penalty that does not exceed $1,000 for the Employer’s first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations. The Ordinance also includes an appeal process.

This Ordinance is the latest in a string of California state and local ordinances designed to provide added protections to Workers affected by the COVID-19 pandemic. Companies are advised to continue to monitor further developments and consult legal counsel with questions.