San Francisco has approved an emergency ordinance that temporarily creates reemployment and other rights for certain employees laid off due to the COVID-19 pandemic. The ordinance went into effect on July 3, 2020 and expires September 1, 2020.
The emergency ordinance covers employers with 100 or more employees (as of the earliest date that the employer separated one or more employees that resulted in a layoff). However, employers that provide services that qualify as healthcare operations are exempt from the ordinance.
To be covered by the ordinance, the worker must: (1) be employed by their employer for at least 90 days of the calendar year preceding the date on which their employer provided written notice of layoff; and (2) be separated due to a layoff.
For the purposes of the ordinance, a layoff is defined as separation of 10 or more employees during any 30-day period, commencing on or after February 25, 2020, and which is caused by the employer's lack of funds or lack of work for its employees, resulting from the Public Health Emergency and any shelter-in-place orders. This definition includes any layoff conducted in conjunction with the closure or cessation of an employer's business operations in the city.
Layoff Notice and Recordkeeping:
When an employer implements a layoff after the beginning of the Public Health Emergency, the employer must provide all covered workers with written notice on or before the date of the layoff. The employer must provide the notice in a language understood by the employee. Employers must also notify the Office of Economic and Workforce Development (OEWD). See the ordinance for details.
The written notice to affected employees must include:
- A notice of the layoff and the effective date;
- A summary of the right to reemployment created by the emergency ordinance (see below); and
- A telephone number for the OEWD for the worker to receive information regarding the right to reemployment, as well as other City resources related to unemployment.
Note: The notice must also be provided to employees who were laid off prior to July 3, 2020. The notice must be provided to these individuals within 30 days of July 3, 2020.
Employers that initiate a layoff after the beginning of the Public Health Emergency must keep the following records for each covered worker for at least two years:
- Full legal name;
- Job classification at the time of separation;
- Hire date;
- Last known address, email address, and telephone numbers; and
- A copy of the written notice of layoff.
Offer of Reemployment Following Layoff:
Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to a position formerly held by a covered worker, the employer must first offer the position to the covered worker.
Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to any position that is substantially similar to the covered worker's former position and the position is also located in the city, the employer must first offer the position to the covered worker. For the purpose of this provision, a "substantially similar position" includes:
- A position with comparable job duties, pay, benefits, and working conditions to the worker's position at the time of layoff;
- Any position in which the covered individual worked for the employer in the 12 months preceding the layoff; or
- Any position for which the covered worker would be qualified, including a position that would necessitate training that an employer would otherwise make available to a new employee for the particular position upon hire.
In the event an employer separated more than one covered worker from the same job classification, the employer must make offers of reemployment based on the workers' seniority.
The emergency ordinance has specific rules for how the offer of reemployment must be delivered and steps for workers to follow to accept the offer. See the ordinance for details.
An employer may withhold an offer of reemployment under the following circumstances:
- Misconduct. If, based on information obtained subsequent to the layoff of a covered worker, the employer learns that they engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer or other misconduct during their employment with the employer.
- Severance Agreement. If: (1) the employer separated a covered worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) the employer and the worker executed a severance agreement prior to July 3.
- Rehiring. If: (1) the employer separated the worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) prior to July 3, the employer hired another person to the position or the substantially similar position.
Reasonable Accommodations for Family Care Hardship:
Employers are prohibited from discriminating against or taking adverse action against a covered worker because they are experiencing a family care hardship. Covered workers are also entitled to reasonable accommodation if a family care hardship impacts their ability to perform a job duty or to satisfy a job requirement. In response to a request for accommodation, the employer must make good-faith efforts to reasonably accommodate the individual. For the purpose of this provision, reasonably accommodate includes, but isn't limited to, modifying the worker's schedule, modifying the number of hours worked, or permitting telework, to the extent operationally feasible.
Under the ordinance, a family care hardship is when a covered worker is unable to work due to either:
- A need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, as a result of the Public Health Emergency, and no other suitable person is available to care for the child during the period of such leave; or
- Any grounds stated in the San Francisco Paid Sick Leave Ordinance for which a person may use paid sick leave to provide care for someone other than themselves.
Covered employers should read the ordinance in full and ensure compliance. Please contact your dedicated service professional with any questions.