San Francisco Enacts Temporary Protections for COVID-Positive Workers And Applicants

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Seyfarth Synopsis: On September 1, 2020, the San Francisco Board of Supervisors approved another temporary emergency ordinance, this time protecting employees, contractors, and job applicants from adverse employment action if they test positive for coronavirus, or choose to isolate, or quarantine, due to COVID-19 exposure or symptoms.  On Friday, September 11, 2020, the San Francisco mayor approved the ordinance without comment.  The ordinance expires on November 10, 2020 (unless it is reenacted by the Board).

On Friday, September 11, 2020, the San Francisco mayor approved an ordinance protecting employees, contractors, and job applicants from adverse employment action in the event that they test positive for COVID-19, or quarantine based on symptoms or exposure to the virus.  The Ordinance remains in effect for sixty days (i.e., it expires on November 10, 2020), unless it is reenacted by the Board—similar to its recent reenactment of the Public Health Emergency Leave Ordinance and the “Right to Reemployment Ordinance.”  The key provisions of the temporary emergency Ordinance are as follows:

Purpose. The stated purpose of the Ordinance is to encourage all Workers, including both employees and contractors, who work in San Francisco to take a coronavirus test and/or quarantine after COVID-19 exposure or symptoms.  The Ordinance notes that many Workers—particularly low-wage workers who work in essential jobs or who cannot work remotely—have been reluctant to take coronavirus tests and/or quarantine due to fears of adverse employment action, including job loss.

Which Employees Are Covered. The Ordinance protects all “Workers” who provide labor or services for remuneration within San Francisco.  It defines “Workers” as those who are considered “employees” under the California Labor Code and includes both part-time and temporary employees.  “Workers” also includes any independent contractor or person who has personally provided at least sixteen hours of labor or services for an employer.  Notably, in addition to protecting Workers, the Ordinance also covers job applicants, meaning an employer cannot withhold a job offer or contract because the applicant tested positive for coronavirus or is isolating.  The Ordinance’s definition of “job applicants” includes former employees who are being considered for re-employment or contracting following a furlough, layoff, or separation.

Worker Protection Provisions. The Ordinance makes it unlawful for any employer to take adverse action against a Worker who is absent from work, unable to work, or requests time off after testing positive for coronavirus or who is quarantining due to COVID-19 symptoms or exposures.  The same provisions apply to all Workers who had previously been absent from work, unable to work, or requested time off, due to a positive coronavirus test or due to quarantining.  Significantly, the provisions of the Ordinance apply whether or not the Worker would have otherwise been eligible to take paid or unpaid leave.

While the Ordinance allows the employer to ask the Worker to identify a “general” reason for an  absence from work, inability to work, or request for time off, the employer may not require disclosure of the Worker’s health information or request other medical documentation.

Rebuttable Presumption of Adverse Employment Action. The Ordinance creates a rebuttable presumption of adverse employment action for any adverse action taken against a Worker within ninety days of the Worker’s absence from work or request for time off work.  However, an employer may rebut the presumption by establishing an alternative basis for the adverse action, such as by showing deficiency in the Worker’s performance or misconduct by the Worker.

No Retaliation. An employer may not interfere with a Worker or job applicant’s exercise of his rights under this Ordinance and may not retaliate against a Worker or applicant for exercising his rights under this Ordinance.

Enforcement. San Francisco’s Office of Labor Standards Enforcement has been charged with enforcing this Ordinance, and may investigate any and all possible violations.  The agency may order any relief it deems appropriate, including, for example, requiring the employer to hire an applicant, reinstate a Worker, or pay lost wages to a job applicant or Worker.  It may also impose a maximum administrative penalty of $1,000 for the employer’s first violation, $5,000 for a second violation, and $10,000 for the third and each subsequent violation.  Interests on all amounts may be due, and the employer may also be liable for reimbursing the agency for the costs of investigation.  In some cases, the City Attorney will be empowered to request that an employer’s business permit or license be suspended until the violation is remedied.  The Ordinance affords limited appeal rights in the event liability is found.

A Warning for Employers. While the Ordinance is temporary, covered employers should not assume the Agency will not enforce the Ordinance before it automatically expires on November 10, 2020.  The consequences of violating the Ordinance are significant, so covered employers should consider them carefully.  In the meantime, Seyfarth Shaw attorneys remain ready to assist employers complying with the new Ordinance and other COVID-19 related issues.