• The San Francisco Office of Labor Standards Enforcement (OLSE) expanded the protections of the FFWO through amendments in 2022 and published Rules Implementing the Family Friendly Workplace Ordinance. The amendments were largely implemented in response to the strains caused by the COVID-19 pandemic.

You can find more information regarding the FFWO on the city's FFWO webpage. You can also contact the San Francisco Office of Labor Standards Enforcement (OLSE) by phone at (415) 554-6424 or by email ffwo@sfgov.org.

The FFWO covers employers with 20 or more employees .

Employers Covered Under the Family Friendly Workplace Ordinance

A covered employer (employer) under the FFWO is an employer "who regularly employs 20 or more employees, regardless of location." In other words, if you have fewer than 20 employees in San Francisco but 20 or more employees total, the ordinance applies to your business. 1

According to the OLSE, all employees should be counted regardless of their status or classification as seasonal, commissioned, permanent, temporary, full time, or part time. If the number of employees fluctuates or your business expands to 20 or more employees, you are covered if you had an average of 20 employees per week performing paid work during the preceding calendar quarter.

To qualify as an employer subject to the FFWO, the employer must maintain a physical business location within the geographic boundaries of the San Francisco. 2

Employees Entitled to the Benefit

The FFWO requires you to consider requests for flexible or predictable working arrangements from any employee who:

• Is employed within the geographic boundaries of San Francisco; and
• Has been employed with you for six months or more.

The FFWO does not apply to:

• Employees working in public safety or public health functions if the OLSE approves the employer's request for exemption based upon operational requirements; 3 or
• Employees covered by a valid collective bargaining agreement if the ordinance requirements are explicitly waived in clear and unambiguous terms. 4

Employees' Right to Flexible or Predictable Working Arrangements

Employees who meet the eligibility requirements have a right to flexible or predictable working arrangements to assist with caregiving for the following individuals: 5

• A child or children for whom the employee has assumed parental responsibility;
• A person or persons with a serious health condition in a family relationship with the employee; or
• A person or persons who are age 65 or older and in a family relationship with the caregiver.

For purposes of the FFWO, the following definitions apply: 6

• "Child" and "Children" mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis to that child, who is under 18 years of age;
• “Serious health condition" means an illness, injury, impairment or physical or mental condition that involves either of the following:
• Inpatient care in a hospital, hospice or residential health care facility; or
• Continuing treatment or supervision by a health care provider.
• "Family relationship" means a relationship in which the employee is related by blood, legal custody, or marriage or domestic partnership to another person as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent.

A "flexible working arrangement" is a change in the employee's terms and conditions of employment that provides the employee with flexibility to assist with caregiving responsibilities. 7

Employees also may request predictability in their work schedule. "Predictable working arrangement" means a change in an employee's terms and conditions of employment that provides scheduling predictability to assist that employee with caregiving responsibilities. 8

Process for Submitting Flexible or Predictable Working Arrangement

Employees must submit a written notice of their need for a flexible or predictable working arrangement. The notice must state: 9

• The date on which the employee requests that the arrangement becomes effective;
• The duration of the arrangement; and
• Explain how the request is related to caregiving.

Employees can request changes in the terms and conditions of their employment that provide flexibility to assist with caregiving responsibilities. Requests may include changes related to: 10

• The number of hours the employee is required to work;
• The times when the employee is required to work;
• Where the employee is required to work;
• Work assignments or other factors; or
• Predictability in a work schedule.

If an employee initially makes a verbal request, the employer must direct the employee to submit the request in writing. 11

Employees covered by the FFWO may (but are not required to) use the sample form provided by the OLSE to make their written request for a flexible or predictable working arrangement.

You are allowed to request verification of caregiving responsibilities (for example, verification that a family member is 65 or older). Employers may request confirmation from a medical professional that the family member has a serious health condition. However, according to the OLSE, any such request should be reasonable and should not be used to deter employees from making requests. To comply with privacy laws, you should request only the minimum information needed for verification, and you should keep that information confidential, sharing it only if there is a business-related need to do so.

Employer's Response

You must follow strict timelines for responding to requests. Specifically, you must respond to the employee in writing within 21 days of the employee's oral or written notice. However, this deadline may be extended by agreement between the employer and employee, so long as it is confirmed in writing.

Prior to the 2022 amendments, you were required to meet with the employee after receiving notice of the request. Now that meeting is optional. If you do conduct a meeting, it must occur within 14 days of the oral or written notice. 12

Interactive Process

An employer who agrees to the arrangement proposed by the employee shall confirm the agreement in writing. 13 The approval must be express and include the specific terms of the arrangement, as well as the duration of the arrangement, with starting and ending dates. 14

However, an employer who does not agree with the arrangement proposed by the employee must now engage in an interactive process to attempt in good faith to determine a flexible or predictable working arrangement that is acceptable to both parties. 15 An interactive process requires a timely, good faith discussion, either orally or in writing, between the employer and employee. 16 As a best practice, employers should document their conversations with the employee. The employer and employee shall exchange information, then the employer should analyze the functions and purpose of the employee's position in relation to the operations of the business. The employer should also consider the requested arrangement, but may approve an alternative arrangement that is effective in meeting the employee's caregiving responsibilities.

The city provided the following example of an interactive process in the rules:

Example: Employee requests to Telework on Wednesdays to accommodate their caregiving responsibilities. Employee can perform their duties via Telework, but Employer does not want Employee to Telework then because they have an in-person team meeting on Wednesday mornings.

Employer must contact Employee in a timely manner, without unreasonable delay, to begin the interactive process. Examples of reasonable delay would be the Employee being on vacation or the Employer being at a work conference. Employer must have a conversation with Employee about alternative accommodations that would support the Employee's need to meet their caregiving responsibilities. During their discussion, Employee explains they need to be home by 3:00pm. Employer could propose that Employee work on site until 12:00pm, thereby attending the team meeting, and then Telework the remainder of the workday. 17

The interactive process and undue hardship concepts come into play not just upon the initial request for an arrangement, but also when either party wishes to change an existing arrangement. Employers and employees may alter a flexible or predicable working arrangement by mutual agreement.

Prior to the amendments, either an employer or an employee could revoke an applicable arrangement. Now, if an employer concludes that the arrangement is causing undue hardship, the employer must engage in an interactive process with the employee to attempt in good faith to determine a different arrangement that would be acceptable to both parties. If the employer and employee cannot reach an agreement, the employer may, after the interactive process, revoke the existing arrangement with 14 days written notice to the employee. 18

Undue Hardship

If a proposed arrangement would cause the employer undue hardship, then the employer does not have to grant the request. "Undue hardship" means the employer suffers significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer's business. 19 The burden of proof is on you as the employer to demonstrate that a requested arrangement would impose an undue hardship. 20

If you deny an employee's arrangement proposal, you must explain the denial in a written response that sets out the basis for the denial. The denial must also notify the employee of the right to request reconsideration within 30 days of the denial and that he or she may file a complaint with the OLSE. Employers must also provide a copy of the notice published by the OLSE to the employee. 21

Bases for undue hardship include, but are not limited to: 22

The identifiable costs directly caused by the flexible or predicable working arrangement, such as productivity loss, retraining or hiring employees, or transferring employees from one facility to another facility;

• Detrimental effect on ability to meet customer or client demands;
• Inability to organize work among other employees; and
• Insufficiency or work to be performed during the time or at the location the employee proposes to work.

You are not required to alter or impede your business operations in a manner that would cause significant expense or operational difficulty. A "significant expense or operational difficulty" is an identifiable cost directly caused by the requested arrangement and is assessed in relation to an employer's size, financial resources, nature, and structure. 23

Here is one of several examples provided by the city regarding undue hardship:

Example: Employee's regular schedule is 9:00 am to 6:00 pm. Employee requests to work from 10:30 am to 7:30 pm instead to accommodate their caregiving responsibilities. Employee's supervisor cannot work a schedule other than 9:00 am to 6:00 pm. Employer determines that Employee cannot work without supervision due to the nature of the business. Employer may be able to demonstrate an undue hardship based on productivity loss and deny the requested arrangement. the business. Employer may be able to demonstrate an undue hardship based on productivity loss and deny the requested arrangement.

Right to Reconsideration

If you reject an employee's request for a flexible or predicable working arrangement, the employee may submit a request for reconsideration within 30 calendar days. You must arrange a meeting to discuss the employee's request for reconsideration within 21 calendar days of receiving the request for reconsideration and provide a final decision in writing 14 calendar days after the meeting. 24

Posting and Recordkeeping Requirements

The FFWO requires you to post a notice, developed by the OLSE, to inform employees of their rights.23 The notice must be posted in a conspicuous place at any workplace or job site. You must post this notice in English, Spanish, Chinese and any language spoken by at least five percent of the employees at the workplace or job site. As of July 12, 2022, employers must replace their current FFWO notice poster with an updated version that includes the new amendments.

• San Francisco Labor Law Posters

You must maintain records to establish compliance with the FFWO for a period of three years from the date of the request for a flexible or predictable working arrangement.24

Required records to be maintained include, but are not limited to:

• Employees' requests for a flexible or predictable working arrangement;
• Documentation of meetings, such as emails or meeting minutes, about employees' requests;
• Your responses granting or denying employees' requests;
• Employees' requests for reconsideration;
• Requests for verification of caregiving responsibilities; or
• Verification of caregiving responsibilities.

You must allow the OLSE reasonable access to the required records to monitor compliance. If you do not keep adequate records or do not allow OLSE reasonable access, it will be presumed that you violated the FFWO. You will have to offer evidence to rebut this presumption.

Enforcement

The OLSE enforces the FFWO. 25 The OLSE may conduct investigations to enforce the FFWO. For FFWO violations, the OLSE has the authority to conduct investigations, monitor compliance and impose penalties. As part of this authority, the OLSE may examine employer records, conduct inspections of employment sites, speak with workers and other witnesses, conduct audits, and engage in other investigative methods as needed.

If an employer fails to comply with a final administrative decision within the time required, the OLSE may take any appropriate enforcement action to secure compliance - including referring the action to the city attorney for enforcement in a court of law. The OLSE also can request that city agencies or departments revoke or suspend any registration certificates, permits or licenses held by the covered employer until the violation is remedied.

Pending completion of a full investigation or hearing, the OLSE may order any appropriate temporary relief to mitigate the violation or maintain the status quo. If a violation occurred, the OLSE may impose an administrative penalty in which the employer must pay each employee up to $50 for each day that the violation occurred or continued. Also, the amendments allow for the employee to recover up to the cost of care they incurred due to the violation if that amount is greater than the $50 per day. Employers also may be liable for paying investigation costs.

In addition, the city may pursue a civil action, and if the city prevails, it will be entitled to legal or equitable relief. This includes, but may not be limited to, reinstatement of an employee, back pay, payment of benefits or pay unlawfully withheld, or payment of an additional sum as liquidated damages.

Retaliation

The FFWO protects employees against retaliation for exercising any of their rights under the FFWO. 26 For example, employees have the right to request a flexible or predictable working arrangement, file formal complaints, assist in OLSE investigation, or inform other employees of their rights.

Employees are also protected from adverse action based on "caregiver status." In other words, employers cannot discriminate against or penalize an employee for caring for another person protected by the FFWO.

1. San Francisco Labor and Employment Code (L.E.C.) sec. 32.3