San Francisco has passed an ordinance that requires employers to accommodate employees with caregiving responsibilities. This ordinance, along with other recently adopted California laws, dramatically changes employers’ obligations. This article will focus on San Francisco’s new ordinance. In a second related article, I will discuss recent wage and hour changes for legally employing individuals as professional caregivers.
Traditionally, women have been caregivers for members of their family who were unable to care for themselves due to being very young, very old or disabled. However, now there are as many women as men in the workforce. This has resulted in many employees, including both men and women, juggling their regular job responsibilities with their family caregiver responsibilities. At the same time, the demand for professional caregivers for the elderly in residential care facilities and in private homes has grown exponentially as the average lifespan of individuals has greatly increased.
As predicted in a previous article, these demographic shifts have resulted in recent employment-related legislation regarding workers who are also caregivers for their families and workers who are professional caregivers. Now on to San Francisco’s new ordinance.
I. San Francisco’s Family Friendly Workplace Ordinance
The new ordinance, entitled the Family Friendly Workplace Ordinance (“FFWO”), requires employers with 20 or more employees in San Francisco to accommodate employees with caregiving responsibilities by providing them with the right to request flexible or predictable working arrangements. This ordinance will be administered by the San Francisco’s Office of Labor Standards Enforcement (“OLSE”). The FFWO specifically prohibits discrimination and retaliation against employees with caregiving responsibilities, requires that all employees working in San Francisco be informed of their rights as family caregivers, and specifies a detailed procedural process through which employees and employers communicate regarding workplace accommodations for caregivers.
II. Legislative History and Origin
The FFWO is similar to legislation which was introduced three times unsuccessfully in Congress since 2007. It also is similar to laws enacted in Vermont, the United Kingdom, Australia, Northern Ireland and New Zealand. Therefore, the enactment of the FFWO cannot be dismissed as an isolated instance, and may be an indicator of a legislative trend to create a new protected class of caregivers under state and possibly federal law.
III. What Employers and Employees are Covered?
A. Covered Employers
The FFWO only applies to employers with 20 or more employees working in the City of San Francisco. Included in the count of employees are corporate officers and executives plus full time, part time and temporary employees. Employees hired through staffing or temporary agencies are also included in the count of employees if they are subject to “the direction and control of the employer.” Public entity employers are excluded except for the City of San Francisco.
B. Covered Employees
Employees must have worked for a covered employer for at least six months and regularly work at least 8 hours per week to be a covered employee under the FFWO. A “Caregiver” under the FFWO is the primary contributor to the ongoing care of either (1) one or more children for whom the employee has assumed parental responsibility; (2) a parent age 65 or over; or (3) one or more persons with a Serious Health Condition in a Family Relationship with the employee. A “Serious Health Condition” is defined as an illness, injury, impairment or physical or mental condition that involves either (1) inpatient care; or (2) continuing treatment or continuing supervision by a health care provider. A Family Relationship is defined as a relationship in which the Caregiver is related by blood, legal custody, marriage or domestic partnerships with another person as a spouse, domestic partner (under the San Francisco Administrative Code or California Family Code), child, parent, sibling, grandchild or grandparent.
IV. What are Caregivers’ rights under the FFWO?
A. Requests for Flexible or Predictable Working Arrangement
Caregivers have the right to request their employer to provide them with flexible or predictable working arrangements to assist them fulfill their caregiving responsibilities. A Flexible Working Arrangement may include a modified work schedule, changes in start and/or end times for work, part time employment, job sharing arrangements, working from home, telecommuting, a reduction or change in work duties, or part year employment. A Predictable Working Arrangement is defined as a change in an employee’s terms and conditions of employment that provide scheduling predictability to assist that employee with providing caregiving responsibilities.
B. How often can requests under the FFWO be made?
Caregivers must submit their request for a Flexible or Predicable Working Arrangement in writing to their employer after they have met the minimum four months of employment while working a minimum of eight hours of work per week. The request must specify the arrangement applied for, the date on which the employee requests that the arrangement become effective, the proposed duration of the arrangement and an explanation of how the request is related to the employee’s caregiving responsibilities. The requests may not be made more than twice every 12 months, unless the employee experiences a major life event. A Major Life Event is defined as the birth of an employee’s child, adoption of a child or an increase in an employee’s caregiving duties for a person with a serious health condition. Employees who have experienced a Major Life Event may make additional requests.
V. What are the Rights and Responsibilities of Employers?
A. FFWO poster
The OSLE will create a poster to inform all employees of their rights under the FFWO which all employers will be required to post in the work place starting on January 1, 2014. As of the date of this article, no poster has been created.
B. Response to requests by Caregivers
Employers are allowed to ask for verification of Caregiver responsibilities. Employers must meet with the Caregiver making a request and respond to their request in writing within 21 days of their receipt of the employee’s request. Any grant of a request for Flexible or Predictable Working Arrangement must be in writing and confirm the arrangement. Any denial must specify a bona fide business reason for the denial, must inform the Caregiver of her right to have the request reconsidered by the employer, and provide a copy of the ordinance regarding the process for reconsideration. A bona fide reason for denial includes identifiable costs of the proposed change, its negative effect on the ability to meet customer demands, and/or lack of additional labor to perform necessary work. If the employee’s request is denied, the employee is allowed to apply for reconsideration by the employer, and the employer is required to respond in writing to a request for reconsideration. Notably, employers are specifically prohibited from retaliating against employees due to their caregiver status or asserting their rights under the FFWO, or in assisting other workers in exercising their rights under the FFWO.
C. OSLE Process
A Caregiver can file a claim with the OSLE, which will investigate violations of the FFWO. The OSLE may investigate the claim and for the first 12 months issue warnings and notices to the employer regarding corrections. After 12 months, the OLSE may impose penalties of as much as $50 per day, payable to the employee. If the employer does not take prompt action, the OSLE may file an action for reinstatement, back pay, benefits, injunctive relief, liquidated damages of $50.00 per employee per day, and attorneys’ fees and costs. The employer will lose its ability to contest administrative actions if the employer does not follow all necessary steps specified in the FFWO for appealing the OSLE’s rulings.
VI. Some Unanswered Questions about the FFWO
A. Coordination of FFWO leaves with other Leave Laws?
How does a FFWO accommodated work schedule coordinate with other federal and state leave laws? Employers are required to provide full time and part time leaves of absence to employees under federal and state laws including the Family Medical Leave Act (“FMLA”), the California Family Rights Act, the California Pregnancy Disability Leave law, and the Americans with Disabilities Act. Yet the FFWO is silent about how the rights to a leave under the FFWO coordinates with an employee’s right to time off under these other laws. Will a FFWO part time work schedule reduce the amount of time that a worker can take off under the FMLA or vice versa?
B. Can a FFWO reduced schedule be forever?
Most of the other leave laws have a maximum amount of time that an employee can be on a leave of absence from work. However, there does not appear to be any maximum amount of time that an employee can have a reduced work schedule under the FFWO. For example, an employee with caregiving responsibilities for a disabled person could ask for a reduced work schedule which would last as long as that disabled person needs care, which could be a lifetime.
C. How to Pay Exempt Status Employees on a FFWO reduced work schedule?
An employer who reduces the pay of an exempt status employee because they work less than a 40 hour week, jeopardizes the exempt status of the employee. Does this mean that employers are expected to continue to pay a full time salary to employees who have requested a reduced work schedule under the FFWO?
D. Employees provided through Staffing or Temporary Agencies
Small employers may assume that they are not covered by the FFWO because they do not have 20 or more employees on the payroll. However, the FFWO states that employees of staffing or temporary agencies must be included in the count of employees if the employer “exercise(s) control over the wages, hours, or working conditions of an employee.”[i] This is an area that will require further clarification in order to determine when a small employer may or may not be subject to the FFWO.
There are certain to be other questions which will need resolution as the FFWO is implemented starting in 2014. If you are an employer, make sure that you consult with counsel before the law takes effect next year.
[i] Ordinance No. 209-13, Section 12Z.3.