The San Francisco Family Friendly Workplace Ordinance goes into effect on January 1, 2014. The ordinance grants employees who act as caregivers the right to request accommodation from their employers, including flexible schedules or changes in hours. The ordinance formalizes the process for requests for accommodation, and requires employers who deny a request to explain their reasons for doing so in writing. The ordinance was introduced by Supervisor David Chiu, who has said that he hopes the ordinance will help families stay in San Francisco.

To Whom Does the Ordinance Apply?

The ordinance applies to employers who regularly employ 20 or more employees, including part-time employees, within San Francisco. The 20-employees requirement includes temporary workers and workers hired through a staffing agency. Employees who have worked for a covered employer for six months or more and work at least eight hours per week on a regular basis may request accommodation to care for

• • children for whom the employee has parental responsibility;
  • family members with serious health conditions; and
  • parents aged 65 years or older.

What May an Employee Request Under the Ordinance?

An eligible employee can request flexible working arrangements, including an adjustment in the number of hours worked, or the times at which work starts or ends, and permission to telecommute. An employee can also ask for a more “predictable” working schedule, or for a part-time schedule, and can request a different work assignment. The ordinance does not exclude other forms of accommodation in addition to those listed.

An employee can make a request twice in a 12-month period and can make an additional request in the event of a major life event.

What Happens When an Employee Makes a Request?

An employee can make an initial request verbally or in writing. If the request is not in writing, the employer must ask the employee to make the request in writing, and to include the specific accommodation requested, the dates for which the employee would like the accommodation, and an explanation of how the accommodation relates to caregiving. Once submitted, the employer must meet with the employee within 21 days to review the request. After the meeting, the employer has another 21 days to grant or deny the employee’s request in writing. A denial must include a “bona fide” business reason for the refusal. A “bona fide” business reason may be identifiable costs, such as retraining, a detrimental effect on customer and client demands, insufficient work during the time the employee wishes to work, or an inability to organize work among employees. If a request is granted, either the employee or employer may revoke the arrangement with 14 days’ written notice. Every time an employer revokes the arrangement, the employee may make one additional request within the applicable 12-month period. An employee whose request is denied may also submit a written request for reconsideration within 30 days of the decision. Once submitted, the employer must again meet with the employee within 21 days, and then give another decision in writing within 21 days of the meeting. If the request is denied after reconsideration, the employer must reiterate its business reasons for denying the accommodation.

The ordinance expressly prohibits employers from retaliating against employees who request or receive a family care accommodation.

What Are the Other Requirements and Potential Liabilities?

The ordinance requires employers to post a notice drafted by the San Francisco Office of Labor Standards Enforcement (OLSE) in specified languages at the job site. Records related to requests for leave must be retained for three years from the date of the initial request, and must be made accessible to the OLSE with reasonable notice. Employers should also be aware that the OLSE is allowed to investigate and enforce the ordinance, and the city may enforce the ordinance through litigation. During the ordinance’s first effective year, the OLSE may only issue warnings and give employers an opportunity to correct a violation.  After a warning, the OLSE may impose penalties of up to $50.00 per day payable to any employee whose rights under the ordinance were violated.

What Steps Does My Company Need to Take?

Employers should take the following steps to prepare for the ordinance:

• • Bring the ordinance to the attention of your human resources professionals or other staff responsible for managing leave requests.
  • Prepare accommodation request forms that meet the requirements of the ordinance and make sure the forms are accessible to employees.
  • Post the required notice in a high-traffic area visible for all employees to see. The notice is available here.
  • Plan to maintain ordinance-related records for at least three years.

Contact counsel to determine if the ordinance applies to your business and for guidance on how to comply with this new ordinance.

© 2013 Perkins Coie LLP