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San Francisco Employees Have a "Right to Reemployment" Due to COVID-19

Posted by: Jessica Hawthorne, J.D. on Wednesday, July 8, 2020

As with all things COVID-19 related, we once again see an unprecedented move with the passing of a temporary "right to reemployment" ordinance that did not require the mayor's signature. On June 23, 2020, the San Francisco Board of Supervisors voted in favor of legislature requiring San Francisco employers with 100 or more employees to "offer a right to reemployment" to certain workers who were laid off due to the ongoing COVID-19 pandemic. The ordinance was enacted on July 3, 2020 and obligates covered businesses to comply within 30 days (by August 2, 2020). It will remain in effect through September 1, 2020 unless the Board votes to extend it.

The details of this ordinance can be found here. Employers in San Francisco should be aware of the following criteria:

  • Who is covered? Applies to any for-profit or non-profit business operating in San Francisco on or after February 25, 2020 with 100 or more employees. Many healthcare businesses are exempt.
  • How is layoff defined? For purposes of this ordinance, a layoff is considered a separation of employment affecting 10 or more employees within a 30 day period, including business closures. The layoff must have occurred because of the San Francisco's emergency health declaration and/or due to orders to shelter in place during the COVID-19 pandemic.
  • Who is an eligible worker? An "eligible worker" is an individual who had been employed for at least 90 days at or before the time of layoff.
  • What notice(s) are required? While the ordinance is in effect, employers must provide notice to all "eligible workers" in a language the individual understands which includes the effective date, rehire rights, and the Economic and Workforce Development (OEWD) hotline number. Employers must inform the OEWD within 30 days of the layoff the total number of employees affected with job classifications, original hire dates, and separation dates.
  • Are there record retention requirements? Employers must keep records of each layoff for 2 years including the worker's legal name, job classification, hire date, last known address, email, phone number, and copy of the layoff notice.

If you are a business that laid off employees between February 25, 2020 and July 3, 2020, you must retroactively provide notice to all previously laid-off "eligible workers" by August 2, 2020. This is true even if you already gave a previous notice. This is to inform employees of the new "right to reemployment."

Rehiring: While the ordinance is in effect, if a San Francisco business decides to hire post layoff, it is required to offer those positions to laid-off "eligible workers" when hiring for those same or "substantially similar positions" to those held by laid-off employees. Please see the ordinance for the complete definition of "substantially similar" and when seniority determines who should be rehired.

  • The offer must be made to the employee by telephone or email.
  • If you do not get a response, you are required to mail the employee offer by certified mail, giving the employee at least 2 business days to respond.
  • Employers must notify OEWD in writing of the reemployment offers as well as the acceptance and rejection notices.

There are limited reasons when employers can refuse to rehire such as for misconduct, a previous settled severance agreement, or if someone was hired prior to the effective date of the ordinance.

Employers should also know that they must reasonably accommodate those individuals who have hardship as defined by the ordinance. Those hardships include reasons listed under the San Francisco Paid Sick Leave and for the need to care for a child because the child's school is closed.

The penalties associated with this ordinance is the employee's right to file their own civil lawsuit and seek reinstatement, economic damages, and attorney's fees.

CEA is here to help! Give us a call at 800.399.5331 to review and assist you with your plan. CEA HR Advisors are informed and ready to assist with this cumbersome process and at your request, can create documents needed to comply.

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Private comment posted on July 16, 2020 at 11:00:25 pm
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