July 21, 2020

San Francisco Enacts Temporary ‘Back to Work’ Ordinance in Response to COVID-19 Layoffs

On June 23, 2020, the San Francisco Board of Supervisors passed a "Back to Work" Emergency Ordinance guaranteeing reemployment to certain employees laid off due to the COVID-19 pandemic. The ordinance requires covered employers to provide written notice when layoffs occur while also prohibiting discrimination against, and requiring reasonable accommodations for, employees who experience a family care hardship.

The ordinance took effect on July 3, 2020 and will expire on September 2, 2020, unless the board votes to extend it.

Covered Employers

The ordinance applies to for-profit and nonprofit employers with operations in San Francisco that employ, or have employed, 100 or more employees on or after February 25, 2020.

It does not apply to federal, state, local or other public agencies, or certain healthcare employers including hospitals, clinics, COVID-19 testing locations, dentists, pharmacies, blood banks and blood drives, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare service providers, mental health providers, or any related and/or ancillary healthcare services, as well as veterinary care and all healthcare service providers to animals.

Covered Employees

The Ordinance applies to workers who are employed for at least 90 days of the calendar year preceding the date on which their employer provided written notice to them of a layoff and who were separated due to a layoff covered by the ordinance.

The ordinance does not apply to employees covered by collective bargaining agreements (CBAs) to the extent the requirements of the ordinance are expressly waived in the CBA in clear and unambiguous terms.

Qualifying Layoff

A covered layoff is a separation (termination or end of employment) of ten 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 work for its employees, resulting from the states of emergency declared by the governor of California and the mayor of San Francisco in response to the COVID-19 pandemic and any San Francisco shelter-in-place order. This includes any layoff conducted in conjunction with the closure or cessation of an employer's business operations in the city.

Notice Requirements in the Event of a Covered Layoff

  • Notice to Former Employees — Covered employers must provide eligible workers with written notice of the layoff at or before the time when the layoff becomes effective, in a language understood by the eligible worker. This notice must include:
    • The layoff's effective date,
    • A summary of the right to reemployment created by the ordinance, and
    • A telephone number for a hotline, to be operated by the Office of Economic and Workforce Development (OEWD), which eligible workers may call to receive information regarding the right to reemployment created by the ordinance, as well as navigation services and other city resources related to unemployment.

If a qualifying layoff occurred between February 25, 2020 and July 3, 2020 (the effective date of the ordinance), the employer must provide this notice to each eligible worker by August 2, 2020.

  • Notice to the City — Covered employers must also provide written notice to the OEWD within 30 days of initiating a covered layoff. This notice must identify:
    • The total number of employees located in San Francisco affected by the layoff,
    • The job classification at the time of separation for each eligible worker,
    • The original hire date for each eligible worker, and
    • The date of separation from employment for each eligible worker.

In the event, however, that an employer did not foresee that separation of employees would result in a covered layoff, the employer must provide such written notice within seven days of its separation of the tenth employee in a 30-day period as a result of the COVID-19 public health emergency and any shelter-in-place order.

Record Retention Requirements

Covered employers initiating a layoff must retain for at least two years records containing the following information for each affected eligible worker:

  • Full legal name,
  • The job classification at the time of separation,
  • The date of hire,
  • The last known address of residence,
  • The last known email address,
  • The last known telephone number, and
  • A copy of the layoff notice.

The two-year period is measured from the date the written notice is provided to the eligible worker.

Rehiring Requirements

  • Same Position — Covered employers initiating a layoff and subsequently seeking to hire a person to a position formerly held by an eligible worker must first offer the eligible worker an opportunity for reemployment to their former position before offering the position to another person.
  • Substantially Similar Position — Covered employers initiating a layoff and subsequently seeking to hire a person to any position that is substantially similar to the eligible worker's former position, assuming the position is also located in San Francisco, also must first offer the eligible worker an opportunity for reemployment to the substantially similar position before offering the position to another person. The ordinance defines "substantially similar position" broadly to include any of the following:
    • A position with comparable job duties, pay, benefits and working conditions to the eligible worker's position at the time of layoff,
    • Any position in which the eligible worker worked for the employer in the 12 months preceding the layoff, and
    • Any position for which the eligible worker would be qualified, including a position that may require training, if the employer would otherwise make the training available to a new employee upon hire.
  • Seniority — In the event a covered employer intends to offer reemployment to an eligible worker, and the employer separated more than one eligible worker from the same job classification, the employer must make offers of reemployment based on seniority. Seniority is determined by the eligible worker's earliest date of hire with the employer.
  • Circumstances Under Which an Offer of Reemployment May Be Withheld — Covered employers may withhold an offer of reemployment where:
    • Subsequent to the layoff of an eligible worker, the covered employer learns that the eligible worker engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer or other misconduct during their employment,
    • The eligible worker was laid off, and executed a severance agreement in which he or she agreed to a general release of claims against the employer, before the effective date of the ordinance,
    • The eligible worker was laid off, and the employer hired another person to fill the eligible worker's former position or a substantially similar position, prior to the effective date of the ordinance.
  • Rehiring Offer — Once covered employers decide to offer reemployment to laid off eligible workers, they must provide these former employees notice of the offer by telephone and email. In the communication, the employer must state that:
    • It wishes to extend an offer or reemployment,
    • It seeks the eligible worker's consent to transmit a written offer of reemployment by email, and
    • If an eligible worker consents, the eligible worker must provide the employer with written confirmation of their consent by text message or email no later than 5:00 p.m. PT on the next business day.

If an employer does not have telephone or email contact information for an eligible worker or is unable to make contact with an eligible worker by telephone or email, then the employer must attempt to contact the eligible worker by certified mail or courier delivery. The offer shall remain open for at least two business days following delivery by certified mail or courier.

  • Rehiring Notice to the OEWD —Covered employers must also notify the OEWD in writing of all offers of reemployment made under the ordinance, in addition to all acceptances and rejections by eligible workers of such offers.

Non-Discrimination and Duty to Reasonably Accommodate Eligible Workers Experiencing a Family Care Hardship

Employers are prohibited from discriminating against or taking adverse employment actions against eligible workers experiencing a family care hardship. "Family care hardship" means an eligible 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 COVID-19 public health emergency, and no other suitable person is available to care for the child during the period of such leave; or any reasons that a person may use leave under San Francisco's Paid Sick Leave Ordinance to provide care for someone other than themselves.

Employers also have a duty to make good faith efforts to reasonably accommodate eligible workers if a family care hardship impacts their ability to perform a job or to satisfy a job requirement. Reasonable accommodations may include, without limitation, modifying an eligible worker's schedule, modifying the number of hours to be worked or permitting telework to the extent operationally feasible. This duty to accommodate expires upon expiration of the ordinance.

Takeaway

Because employees may bring a civil lawsuit for violations of the ordinance and seek reinstatement, back pay, front pay and reasonable attorneys' fees and costs, non-compliance can be costly for businesses. Therefore, San Francisco employers must begin taking steps to ensure compliance with the ordinance, to the extent they have not already done so.

Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.
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