With San Francisco’s Back to Work Ordinance now in effect, employees laid-off due to COVID-19 may have right to reemployment

On July 3, San Francisco's new "Back to Work" emergency ordinance took effect, requiring employers to rehire certain employees laid off as a result of the COVID-19 pandemic when the employer seeks to fill the same position formerly held by the laid-off worker, or a substantially similar position. The ordinance will expire on September 2, 2020, but may continue if extended by the City.

Employers covered by the ordinance

The ordinance applies to for-profit and non-profit businesses in the City and County of San Francisco which had 100 or more employees on or after February 25, 2020. An employee will be considered eligible under the ordinance when 10 or more employees are laid off during any 30-day period (after February 25) due to lack of funds or lack of work resulting from the COVID-19 public health emergency (including a business closing due to shelter-in-place orders). For unionized employers, the requirements of the ordinance may be waived through a collective bargaining agreement in clear and unambiguous terms.

The ordinance exempts public sector employers, as well as hospitals, clinics, and other healthcare providers. Pharmaceutical and biotechnology companies are likewise exempt.

(Although the ordinance is not clear, rules implementing other San Francisco ordinances measure employer size by a headcount of all persons working for the employer, regardless of whether they are located in San Francisco or outside of the city. Therefore, large national or state-wide employers who nonetheless have fewer than 100 employees in San Francisco are probably covered by the Back to Work ordinance as well. In criticizing the ordinance, the mayor wrote: "the scope of who is covered by this ordinance is a confusing patchwork." We hope to receive further guidance from the city.)

Requirements in the event of a covered layoff

1. Notice

An employer implementing a covered layoff must provide written notice to qualifying employees (those who have been employed for at least 90 days prior to the notice of layoff) at or before the time the layoff becomes effective. The notice must include: its effective date, a summary of the right to reemployment under the ordinance, and a hotline number operated by the Office of Economic and Workforce Development (OEWD). Critically, the ordinance also requires employers to issue this notice for COVID-19-related layoffs that occurred before July 3.

Employers must notify the OEWD within 30 days that it initiates a covered layoff (or within 7 days of its separation of the 10^th employee in a 30-day period if a covered layoff was unforeseeable). The notice must identify: the total number of employees in San Francisco affected by the layoff, the date of separation for each employee, job classifications, and original hire dates.

In the event of a layoff, employers must maintain specific records for two years, including: the employee's full legal name, job classification at time of separation, date of hire, last known home address, email address, phone number, and a copy of the written notice of layoff.

2. Rehiring requirements

If a business decides to rehire for a position made vacant by a covered COVID-19-related layoff, or for a substantially similar position in San Francisco, the business must first offer the position to the laid-off employee who formerly held the position. A "substantially similar position" is:

• One with comparable job duties, pay, benefits, and working conditions
• One which the eligible worker held in the 12 months preceding the layoff; or
• One for which the eligible worker is qualified, including a position that would necessitate training that an employer would otherwise make available to a new hire.

If more than one former employee is eligible for the position, the business must make offers based on earliest date of hire.

An employer may decline to extend a reemployment offer to an otherwise eligible former employee under the following circumstances:

• When the employer discovers employee misconduct after the lay-off, including acts of dishonesty, or violations of law or employer policy;
• The employer and the employee executed a severance agreement before July 3 in which the eligible employee agreed to a general release of claims against the business; or
• The position was already filled before July 3.

Businesses must notify employees of a decision to rehire in the following manner:

• First, by contacting the employee at the employee's last known phone number or email address — the business must request consent to send the offer of reinstatement via email.
• If the employee consents to email, the business must send the email no later than 5:00 p.m. PT the following business day. The employee must accept the offer no later than 5:00 p.m. PT on the business day following receipt of the offer.
• If the employee does not consent to receive the offer through email, the business must send a written offer by certified mail or courier delivery to the employee's last known address. The offer shall remain open for at least two business days following delivery.

Acceptance of a rehire offer must be in writing. An employee may either return a hard copy of the signed offer letter or apply an electronic signature to the letter. If the employee accepts the offer via telephone or text message, the business must allow them two business days to confirm in writing. This period may be extended upon agreement.

Finally, the business must provide written notification to OEWD of all offers, acceptances, and rejections of reemployment.

Family care hardship accommodation

The ordinance also includes a family care hardship exception applicable to eligible employees who are unable to work due to:

• Childcare needs as a result of school or daycare closure related to COVID-19, and where suitable replacement care is unavailable; or
• Any reasons listed under the San Francisco Sick Leave ordinance to care for someone other than the employee.

Covered businesses must make a good faith effort to reasonably accommodate an employee experiencing a qualifying family care hardship. Such efforts include modifying work schedules or the number of work hours, and permitting telework where feasible. Businesses must take care not to discriminate or take any adverse action against an employee because of a qualifying family care hardship, as such action may expose the business to civil liability under the ordinance. The duty to accommodate under the ordinance expires with the ordinance itself, however, businesses should also review similar obligations under existing federal, state, and local laws and any future ordinances related to the COVID-19 pandemic.