San Francisco Issues Updated Guidance on San Francisco Paid Sick Leave During the Pandemic

by Nikki Mahmoudi, Shauna N. Correia
The Labor & Employment Law Blog

The San Francisco Office of Labor Standards Enforcement (OLSE) issued new guidance on February 2, 2022 pertaining to the use of San Francisco Paid Sick Leave during the pandemic. This new guidance supersedes OLSE’s March 24, 2020 guidance.

While the February 2, 2022 guidance shares much of the same language as the March 24, 2020 guidance, San Francisco employers should be aware of the following changes:

Employer Verification of Paid Sick Leave

The OLSE has temporarily amended Paid Sick Leave Ordinance (PSLO) Rule 2.3.  Previously, the OLSE stated that during the pandemic,  employer policies that required employees to provide verification of paid sick leave for time off of three days or less (a doctor’s note) would be “presumptively unreasonable.”

Effective immediately, the number of sick days an employee can take before an employee may be required to provide documentation, has increased from three to five consecutive scheduled work days.  This means that a policy or practice that requires an employee to provide documentation, such as a doctor’s note, for paid sick leave lasting five or fewer consecutive work days, will be deemed “presumptively unreasonable”. Employers can still, however, require documentation of the use of paid sick leave for more than five full or partial consecutive work days, provided that when an employee uses paid sick leave for COVID-19 related reasons and is not under a doctor’s care, the employer must accept the employee’s attestation of their need for paid sick leave pursuant to current CDC guidelines.  Rule 2.4 (dealing with situations of a pattern or clear instance of abuse by an employee) still remains in effect.

The amendments to Rule 2.3 will remain in effect for the duration of the Local Health Emergency, unless the OLSE revokes them sooner.

Employee Use of Paid Sick Leave

Under the new guidance, the different circumstances where employers covered by the Paid Sick Leave Ordinance must allow covered employees to use accrued sick leave have slightly changed.

An employee can no longer take time off of work because they fall within the definition of a “vulnerable population.” Instead, an employee can now use paid sick leave to get their COVID-19 vaccine or to deal with the side effects of a COVID-19 vaccine. Further, an employee can now use paid sick leave to provide care for a family member to attend a COVID-19 vaccine appointment, who is experiencing vaccination side effects.

As of February 2, 2022, the situations where employees can use accrued paid sick leave if they need to take time off of work are as follows:

  • Public health officials or healthcare providers require or recommend an employee isolate or quarantine;
  • The employee takes time off of work for a COVID-19 vaccination or because the employee is dealing with COVID-19 vaccination side effects;
  • The employee’s business or work location temporarily halts operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines in the February 2, 2022 guidance;
  • The employee needs to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine;
  • The employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

We will continue monitoring the OLSE and the City of San Francisco ordinances for any updates. Meanwhile, employers with questions should contact their regular Weintraub Tobin employment attorney.