San Francisco’s Employee Caregiver Accommodation Ordinance: Employers Need to Get Ready by 2014

Beginning Jan. 1, 2014, a new San Francisco ordinance, entitled the Family Friendly Workplace Ordinance, gives employee “caregivers” the right to request a flexible or predictable work schedule to accommodate their ability to care for a child, a parent over the age of 65, or a family member broadly defined (including a grandparent or grandchild) with a serious health condition. Accommodations that employees may seek, and employers must consider, include: modified work schedule; change in start and/or end times; part-time employment; job sharing; telecommuting; and a reduction or change in work duties.

Although this ordinance pertains only to employees in San Francisco, other local governments around the country may follow suit.

At present, the ordinance applies to employers with 20 or more employees who work in San Francisco. However, San Francisco officials are saying this was unintentional, and they intend to revise the ordinance to extend to employers who have 20 or more employees regardless of where they or the company’s headquarters are located (like the current San Francisco Healthcare Security Ordinance). Covered employers do not include the state or federal government or any local government other than the City of San Francisco. Unionized employers can opt out of all or any part of the ordinance, provided that the intent to do so is clearly and unambiguously stated in the collective bargaining agreement.

Employees of covered employers who work in San Francisco at least eight hours per week on a regular basis, who have been employed by the employer for at least six months, and who are caregivers can file a written request for an accommodation. Employers are required to meet with the employee within 21 calendar days of the request, must provide a written response within 21 calendar days of the meeting, and, in the case of a denial, must specify the bona fide business reason for the denial and must provide the employee with notice of the right to request reconsideration.

Bona fide business reasons specified in the ordinance are: (1) the identifiable cost of the change, including productivity loss, retraining, hiring, or transferring a replacement employee; (2) the detrimental effect of the change on the ability to meet customer or client demands; (3) the inability to organize work among other employees; and (4) insufficient work during the time the employee proposes working. The ordinance also formalizes the manner in which an employer may revoke a prior approval and establishes limits on the number of requests an employee may make in a given year. Anti-discrimination provisions based on caregiver status and anti-retaliation provisions are also included.

Although there may be overlap when an employee’s request is related to providing care for a family member with a serious health condition, the obligations created by the ordinance are separate from, and in addition to, obligations under the California Family Rights Act, the federal Family and Medical Leave Act, or any other statute or ordinance.

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with administering and enforcing the ordinance. The OLSE’s review of complaints is limited to the employer’s adherence to procedural, posting, and record-keeping requirements and the validity of claims of adverse employment action based on exercising rights under the ordinance or on caregiver status. The OLSE states that it will not review or evaluate an employer’s stated reason for denying a request.  When a violation is found, the OLSE is empowered only to issue warnings and “notices to correct” for the first year the ordinance is in effect. Beginning in 2015, the OLSE can order any relief it deems appropriate, including penalties paid to the employee of up to $50 per day, and penalties paid to the City of up to $50 per employee per day. The City also has a right to bring a civil action in court. Employees have no right to file suit to enforce the ordinance.

The OLSE has stated publically that further guidance will be forthcoming through “frequently asked questions” and, if necessary, rule-making, although no deadlines have been set. In addition to the possible expansion of the definition of covered employers, the OLSE plans to address whether the ordinance allows the employer to cap the length of time the accommodation will last, and whether the employer can require an employee to periodically renew a request.

For now, employers with 20 or more employees in San Francisco should take the following steps prior to Jan. 1, 2014:

1. Train human resource professionals about the ordinance and the specific obligations it imposes, emphasizing that the ordinance sets out specific instructions concerning the process by which employees are to make requests, employers’ rights to request verification of caregiver status, and the process by which employers must review and process those requests. Employers may want to consider designating a particular manager or HR professional to be the point person through which all requests are made and evaluated.
2. Review and comply with the notice posting which requires employers to post the notice in a conspicuous place in the workplace in English, Spanish, Chinese, and any language spoken by at least 5 percent of the employees. The OLSE will mail the notices in different languages (and have the notices available on its website) before Jan. 1, 2014.
3. Implement a tracking method to document requests and their outcome. This will promote compliance with the three-year record-keeping requirement imposed by the ordinance.
4. Implement the forms and/or templates that will be issued by the OLSE in the coming months in the request process to promote efficiency and consistency.
5. Ensure that all employees are treated fairly to avoid a claim that the flexible-arrangement request process is biased, or that there was retaliation against an employee making a request.

Unionized employers should consider negotiating waivers into collective bargaining agreements.

Should you need guidance on complying with the San Francisco Family Friendly Workplace Ordinance, please contact any employment law attorney in our San Francisco office at (415) 276-6500.