Seyfarth Synopsis: On July 7, 2020, the San Francisco Board of Supervisors passed additional emergency measures to establish cleaning and disease prevention standards at tourist hotels and large commercial office buildings. The measure seeks to contain the spread of COVID-19 as the City looks to reopen hotels to tourists and offices to employees. Deemed the “Healthy Buildings Ordinance,” it will place significant new obligations on most of the City’s hotels and office buildings, including heightened cleaning standards, employee training on paid time, and a prohibition against retaliation against employees for refusing to perform work under conditions they believe may be unsafe. The Ordinance now goes to the Mayor for approval, which is expected.
Heightened Cleaning and Disease Prevention Standards in Tourist Hotels and Large Commercial Buildings
On Tuesday, July 7, 2020, the San Francisco Board of Supervisors passed an emergency ordinance that, once effective, will require most tourist hotels and large commercial office buildings—with the notable exception of any building owned by the City—to establish heightened cleaning and disease prevention standards to help contain COVID-19 as the City’s hotels look ahead to returning tourists and its office buildings to retuning employees. Like the recently-enacted Right to Reemployment Ordinance (read our alert here), this is another example of the Board taking emergency measures to locally address wide-ranging issues in the wake of the ongoing COVID-19 pandemic. Mayor London Breed has until July 17, 2020 to take action on the Ordinance.
Covered Establishment. The Ordinance applies to any tourist hotel or large commercial office building located in the City. The definition of tourist hotel includes any building with more than six guest rooms, excluding single resident occupancy hotels (which are already covered by Health Officer Order No. C19-04) and seemingly excluding short-term rentals from its scope. “Large commercial office building” includes any building with more than 50,000 square feet of office space, excluding any building owned by the City, state, or local government.
Effective Dates. The Ordinance will become effective once signed by the Mayor. The Ordinance would be, for now, temporary, but the Board will have an opportunity to extent the Ordinance beyond the 60-day effective period.
Employee Training and Equipment. The Ordinance mandates operators of covered hotels and office buildings to provide employees, as well as independent contractors and their employees, with certain “comprehensive and ongoing training” on the new standards and equipment, depending on whether they work in a public-facing role. For example, employees “directly assisting customers, guests, or members of the public” must be provided with personal hand sanitizers, at no cost to the employee. Operators must also provide testing for COVID-19 if the Department of Public Health “recommends” it; such testing must be provided at no cost to the employee and on paid time including travel time to and from the testing site.
No Retaliation or Interference with Protected Rights. The Ordinance specifically prohibits any retaliation against an employee for a number of activities, including “refusing to perform work that the Employee believes poses a personal health risk or a health risk to others…” The Ordinance does not specify whether the employee’s belief must be reasonable or based on any objective factors.
Cleaning Standards for Covered Establishments. Written cleaning standards must be established to reduce the transmission of COVID-19, including identifying and providing for cleaning and disinfecting “high-contact areas” multiple times daily. “Multiple times daily” is not specifically defined, though previous versions of the Ordinance had required operators to clean “at least every 30 minutes.” Operators also are required to maintain a compliance log reflecting the cleaning performed. Specific areas and items cited for regular cleaning include public and employee areas, guest rooms, elevators, stairways, stairwells, escalators, restrooms, meeting rooms, and doors, including the multi-use instruments and other equipment in the rooms. Hand-washing and hand-sanitizing stations also will be required in specified areas.
The Ordinance also includes specific protocol in the event there is a reasonable basis to believe that a specific guest room was occupied by an individual infected with COVID-19, including removing the guest room from use until the San Francisco Department of Public Health “confirms it is safe for re-use.”
Penalties. Although the new burdens and attendant costs of the Ordinance are significant, covered businesses should consider them carefully. The Ordinance provides employees with the right to file their own civil lawsuit against an operator in San Francisco Superior Court and seek economic damages (including back pay and front pay), punitive damages, and attorney’s fees for employment-related violations.
Separate from the employment-related penalties, violations of these new cleaning standards will be enforced by the City. Any violations will be deemed a nuisance and punished under applicable law.