©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 43 as a form of personal time off. With California’s new “designated person” coverage, the list of covered family members now matches state law. While state law allows “front loading” of PSL once a year, the PSLO addresses the concept of front-loading PSL somewhat differently. Employers may grant an advance of PSL, which halts accruals until the employee has worked enough hours to earn the amount of the grant, then accruals resume or another advance is needed. San Francisco employees can earn more PSL than under state law and face no limit on the amount of annual use. The San Francisco Office of Labor Standards Enforcement (OLSE) enforces the PSLO.155 OLSE rules state that if an employee is jointly employed, and if at least one employer is covered by the PSLO, then each employer must comply with the PSLO.156 The OLSE notes, by way of example, that joint employment can occur when an employer uses a temporary staffing agency, leasing agency, or professional employer organization. The ordinance also applies to an employee who may live in San Francisco and work from home, or who make stops in San Francisco to work (for example, to make pickups or deliveries), if the employee works in San Francisco at least 56 hours within a calendar year.157 The OLSE rules also provide guidance on calculating the rate of pay for sick leave and generally tracks statewide standards.158 Like state law, the OLSE rules require different rate-of-pay calculations for exempt and nonexempt employees. Although the PSLO does not define “regular rate of pay” or “exempt employee,” the OLSE defers to the DLSE on calculating the regular rate of pay, and to California law regarding whether an employee is exempt or nonexempt from overtime requirements. If an individual is exempt, and no other form of paid leave is provided, then the employee must be paid the designated salary without deducting for sick time taken. But the time taken can be applied against the employee’s sick leave balance. Rates of sick pay that have been deemed reasonable in a CBA remain so, even if the CBA does not explicitly waive or refer to the rates of pay section of the PSLO.159 The PSLO entitles employees to use accrued PSL as of the 90th day of employment. For rehired employees—if separated from the employer and rehired within one year—all previously accrued, unused PSL must be reinstated. For employees separated from an employer before the 90th day of employment and rehired within one year, the original period of employment counts toward the 90-day usage waiting period.160 For example, if an employee separates from an employer after working for 45 days, and then one month later is rehired, the employee must work another 45 days before the employer needs to permit the employee to use accrued PSL. When the Covid-19 pandemic arrived, San Francisco (City and County) quickly issued additional guidance on the general paid sick leave law (PSLO) that was specific to Covid-19, and has since expired. In March 2020, the City of San Francisco passed the Workers and Families First program, allocating $10 million dollars to subsidize five additional paid sick days for Covid-related purposes for employees who had previously exhausted paid sick time. The City’s payment was the minimum wage; employers made up the difference between minimum wage and full sick pay.161 San Francisco Public Health Emergency Leave. Going beyond the pre-existing generous PSLO, in 2020 San Francisco enacted the Public Health Emergency Leave Ordinance (PHELO).162 After repeatedly renewing the PHELO, San Francisco allowed it to expire in 2021, and then passed a permanent Public Health Emergency Leave (PHEL) ordinance that, as of October 1, 2022, requires employers with 100 or more employees worldwide, with limited exceptions, to provide up to 80 hours of paid PHEL to San Francisco employees.163 PHEL may be used during a local or statewide health emergency related to a contagious, infectious, or communicable disease as declared by the City of San Francisco or California’s health officer, and certain vulnerable employees who primarily work outside are entitled to PHEL leave when the Bay Area Air Quality Management District issues a “Spare the Air” alert.164 All employees who work for a covered employer in San Francisco are entitled to PHEL, regardless of duration of employment or job title, including part-time, temporary, seasonal, and salaried
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