You can find more information regarding the PHELO on the City's PHELO webpage. You can also contact the San Francisco Office of Labor Standards Enforcement (OLSE) by phone at 415-554-6271 or by email. A detailed FAQ is also available.

Covered Employers

PHELO applies to businesses with 100 or more employees worldwide. 1 If the number of employees fluctuates above and below 100 over the course of a year, calculate business size based upon the average number of employees per pay period during the preceding calendar year. 2

"Employer" is defined by the PHELO as: "any person, as defined in Section 18 of the California Labor and Employment Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of 100 or more employees worldwide, including one or more Employees." 3 A franchise is covered if all businesses owned by a franchise owner have a total of at least 100 employees. 4

PHELO will not apply to a non-profit organization "if the majority of the annual revenue of the Non-Profit Organization is program service revenue that is not unrelated business taxable income under 26 U.S.C. § 512, as may be amended from time to time, and the Non-Profit Organization does not engage in Healthcare Operations." 5

PHELO also does not apply to:

• Any government entities besides the City of San Francisco;
• The San Francisco Airport; or
• Private businesses in federal enclaves such as the Presidio, Fort Mason, and the Golden Gate National Recreation Area. 6

Covered Employees

A covered employee is any person who performs work for a covered employer within the geographic boundaries of the city San Francisco, including part-time and temporary employees. 7

PHELO applies even if an employee is undocumented and not legally authorized to work in the United States. 8

PHELO does not apply to independent contractors and unionized workers covered by bona fide collective bargaining agreements. 9

Providing PHEL

Public Health Emergency Leave (PHEL) is available for immediate use by all employees, including new hires, full time, part time, permanent, temporary, seasonal, salaried, commission or any other status. 10 Covered employers must provide up to 80 hours of PHEL to employees working in San Francisco.

Employees can use PHEL to care for themselves or for a qualifying family member." "Family member," is defined the same as under the San Francisco Paid Sick Leave Ordinance: 11

• A child, defined as a biological, foster or adopted child; a stepchild; or a legal ward, regardless of the age or dependency status of the child. "Child" also includes a child of a domestic partner or a child to whom the employee acts as a parent, even if the child is not the employee's legal child;
• A parent, defined as a biological, foster or adoptive parent; a stepparent; or a legal guardian. "Parent" also includes a person who is a biological, foster or adoptive parent, stepparent or legal guardian of the employee's spouse or registered domestic partner; or a person who acted as the employee's parent when the employee was a minor, even if the person is not the employee's legal parent;
• A sibling, including biological, adoptive, foster and step-relationships;
• A grandparent, including biological, adoptive, foster and step-relationships;
• A grandchild, including biological, adoptive, foster and step-relationships;
• A spouse;
• A registered domestic partner; or
• A designated person the employee names in advance on a form provided for this purpose, if the employee does not have a spouse or registered domestic partner.
• Within 30 hours after San Francisco's Paid Sick Leave (SFSL) begins to accrue, employees must be given a window of 10 workdays to make the designation. Employees must be provided an annual opportunity to change the designation, with a window of 10 workdays to do so. A "designated person" under SFSL is automatically deemed to be a "designated person" for purposes of PHEL.

This ordinance requires employers to allocate PHEL to each employee every calendar year. Employers do not have to carry over any unused PHEL to the next year. PHEL is in addition to any paid time off, including SFSL, that the employer offers or provides. 12 An employee may use PHEL before using other accrued paid leave. 13

This leave is only available during a "public health emergency." A "public health emergency" is a local or statewide health emergency related to any contagious, infectious, or communicable disease, as declared by the city's local health officer or the state health officer pursuant to the California Health and Safety Code, or an air quality emergency (Spare the Air Alert). 14 Check the San Francisco Department of Public Health (DPH) for current public health declarations and Spare the Air for air quality emergencies. Note, only local or state health emergencies can trigger this leave; federal health emergencies are not considered public health emergencies under this ordinance.

COVID-19 is no longer a qualifying reason for leave under the PHELO. COVID-19 was a qualifying reason under the PHELO under certain circumstances from October 1, 2022, until February 28, 2023, when both the state and the city lifted the state of emergency.

Every January 1, employers must allocate PHEL for employees to use, as applicable, during the calendar year. The amount of the allocation depends on the employee's work schedule: 15

• Full time, regular, or fixed schedule employees: The allocation is equal to the number of hours in a two-week period that the employee regularly works or takes paid leave, not to exceed 80 hours.
• Employees with weekly work hours that vary: The allocation is based on the average number of hours over a two-week period that the employee worked or took paid leave during the previous calendar year.

If an employee is not employed on January 1 of a given year, they receive an allocation of PHEL on the start date of the first public health emergency that begins during that calendar year. Employees with full-time, regular or fixed schedules receive an allocation as described above. Employees with a varied schedule receive an allocation based on the average number of hours in a two-week period that the employee worked or took paid leave during the previous six months, or since the employee's start date if the employee has been employed for fewer than six months, not to exceed 80 hours. 16

For nonexempt employees, PHEL can be paid two ways: using the employee's regular rate of pay for the workweek in which the employee uses PHEL; or by dividing the employee's total wages excluding overtime by the employee's total hours worked in the full pay periods of the 90 days prior to the use of leave. Exempt employees are paid in the same manner as the employer calculates wages for other forms of paid leave. Leave must never be paid at less than the San Francisco minimum wage. 17

PHEL must be paid no later than the payday for the next regular payroll period after the PHEL was taken by the employee. 18

Qualifying Reasons for Use

Employees may use PHEL when they are unable to work (or telework) due to the following: 19

• The recommendations or requirements of an individual or general federal, state, or local health order (including an order issued by the local jurisdiction in which an employee or a family member the employee is caring for resides) related to the public health emergency.
• The employee, or a family member the employee is caring for, has been advised by a healthcare provider to isolate or quarantine.
• The employee, or a family member the employee is caring for, is experiencing symptoms of and seeking a medical diagnosis, or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the public health emergency.
• The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the public health emergency.
• An "air quality emergency," if the employee is a member of a "vulnerable population" and primarily works outdoors.
• An "air quality emergency" is a day when the Bay Area Air Quality Management District issues a Spare the Air alert.
• Vulnerable population" means a person who has been diagnosed with heart or lung disease, has respiratory problems including, but not limited to, asthma, emphysema, and chronic obstructive pulmonary disease, is pregnant or is age 60 or older.
• An employer may require a doctor's note or other documentation to confirm an employee's status as a member of a "vulnerable population."

In certain circumstances, if an employee can telework without increasing the employee's exposure to disease or unhealthy air quality, the employee may not use PHEL. 20

Employers may require that employees provide reasonable notice before use of PHEL, but only when the need for PHEL is foreseeable. 21

Employer Offset

If an employer is required by federal, state, or city law to provide leave or paid time off to address a public health threat that employees may use for the same reasons as PHEL, the employer may reduce allocation of PHEL for every hour of paid leave that the employer is required to provide. 22

Additionally, if circumstances merit the addition of other offsets to reduce the otherwise applicable allocation of PHEL, OLSE may issue guidelines or rules authorizing such offsets.

Posting, Notice, and Recordkeeping Requirements

Covered employers must post a notice in a conspicuous place to inform employees of their rights under the PHELO. Employers shall post the notice in English, Spanish, Chinese, Filipino, and any other language spoken by more than 5 percent of the San Francisco workforce. Where feasible, employers must provide the notice to employees in electronic form, such as an email, text, or a conspicuous place on a web or app-based platform. 23

The current PHEL Notice, in all applicable languages, is part of CalChamber's San Francisco Labor Laws Poster.

• San Francisco Labor Laws Poster

Covered employers must include the amount of PHEL that is available to the employee on the employee's paystub or as an attachment in the same way they provide notice to employees pursuant to California Paid Sick Leave. If an employer provides unlimited paid leave or paid time off to an employee, the employer may indicate on the notice or the employee's itemized wage statement "unlimited." 24

The State Law also requires you to display a Healthy Workplaces/Healthy Families Act of 2014 Paid Sick Leave notice, which is part of CalChamber's California and Federal Labor Law Posters.

• California and Federal Labor Law Posters

You must display both the PHEL and California Sick Leave notices.

Employers must retain records documenting the PHEL taken by employees for a period of four years and allow the OLSE access to the records. 25

If you do not keep adequate records documenting hours worked by the employee and PHEL taken by the employee, or you do not allow the OLSE reasonable access to records, it will be presumed that you violated the ordinance, absent clear and convincing evidence otherwise. 26

Retaliation

Employees who assert their rights to receive PHEL are protected from retaliation.

It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected by this ordinance. 27 Employers may not discharge, threaten to discharge, demote, suspend, reduce benefits, or in any manner discriminate or take adverse action against any person in retaliation for exercising rights protected under this ordinance. These rights include the right to use PHEL, the right to file a complaint or inform any person about an employer's alleged violation of this ordinance, the right to cooperate with the OLSE in its investigations of alleged violations, and the right to inform any person of their potential rights under this ordinance. 28

Furthermore, an employer may not have an absence control policy that counts an employee's use of PHEL as an absence that, alone or in combination with other absences, may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action. 29

If an employee takes an adverse action against an employee within 90 days of the employee filling a complaint with the OLSE or a court alleging a violation of this ordinance, informing any person about an employer's alleged violation of this ordinance, cooperating with the OLSE in the investigation or prosecution of a violation, opposing any policy or practice that is unlawful under the ordinance, or informing any person of their rights under the ordinance, there is a rebuttable presumption that the adverse action was taken in retaliation for the exercise of one or more of the employee's rights under the ordinance. 30

Enforcement

The OLSE can investigate possible violations of the PHELO and may issue determinations of violations and order relief, including reinstatement of employees, payment of paid leave unlawfully withheld, and payment of penalties. 31

Employers who fail to comply with San Francisco's PHELO may be subject to administrative citations, penalties, and civil actions.

Note: Portions of San Francisco's PHELO have industry specific rules that impact the healthcare and emergency provider industries.

1. San Francisco Labor and Employment Code (L.E.C.), Sec.13.2