On August 7, 2020, the San Francisco Office of Economic and Workforce Development (OEWD) published guidance regarding the City of San Francisco's "Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic Emergency Ordinance." Also known as the "Back to Work" emergency ordinance, the ordinance took effect on July 3, 2020, requiring San Francisco employers with 100 or more employees to offer reemployment to eligible employees laid off because of the COVID-19 pandemic when the employers rehire for the same or similar job classifications. The ordinance will remain in effect until September 2, 2020, unless the city extends the ordinance's date of expiration.

The OEWD's new guidance provides: (1) an overview of the ordinance and its reporting requirements; (2) forms employers can use to notify the OEWD of layoffs and reemployment offers; (3) frequently asked questions (FAQs) about the ordinance; and (4) separate OEWD email addresses and hotlines to which employers and employees can direct questions.

Overview of the Ordinance and Its Reporting Requirements

As the guidance explains, and as Ogletree Deakins reported when the "Back to Work" emergency ordinance took effect, for-profit and nonprofit San Francisco employers with 100 or more employees must notify the OEWD if they lay off 10 or more covered San Francisco employees due to the pandemic or the city's shelter-in-place orders. The ordinance covers employees who worked for companies for at least 90 days in 2019 and lost their jobs because of the pandemic emergency. Employers must provide this notice within 30 days of the date that the guidance became effective (August 7, 2020) or within 30 days of the date of the layoffs, whichever is later.

The guidance also explains that an employer covered by the ordinance must notify the OEWD of the number of reemployment offers the employer made to employees who received layoff notices since February 25, 2020. Employers also must notify the OEWD of the number of reemployment offers accepted or declined.

Forms for Providing Notice to the OEWD

The OEWD guidance provides "Notice of Layoff" and "Notice of Reemployment Offers" forms that employers can use to provide the city with the ordinance's required notices to the OEWD. Employers likely will find the forms easy to complete once they gather the required information.

Frequently Asked Questions

The guidance page also provides FAQs about the ordinance. The FAQs include topics such as the ordinance's applicability to covered employers and eligible employees, employer notice obligations to the OEWD, and employer records retention requirements.

The FAQs also explain an employer's notice obligation to employees. Under the ordinance, an employer must provide written notice of a layoff at or before the time that a layoff becomes effective. The notice must include the layoff's effective date, a summary of reemployment rights, and the OEWD's employee hotline number. For layoffs that occurred on or after February 25, 2020, but before the OEWD posted its guidance on August 7, 2020, the employer must provide the same information before September 6, 2020. According to the FAQs, the OEWD has not prepared a template for the employee notice.

In addition, the FAQs remind employers that they have a duty to reasonably accommodate an employee who is experiencing a "family care hardship," which may include, for example, a need to care for a child whose school is closed or for whom childcare is unavailable. According to the guidance, modifying an employee's work schedule, modifying the number of work hours, or permitting telework are potential reasonable accommodations.

Companies covered by the ordinance that laid off the requisite number of employees may wish to review the guidance and the ordinance's requirements and familiarize themselves with the data they are required to retain and convey to the OEWD. An employer's failure to comply with the ordinance could result in the city's bringing an administrative action against the employer or, as the ordinance allows, a covered employee's private lawsuit for reinstatement, back pay, front pay, the value of lost benefits, and reasonable attorneys' fees and costs.

Originally published by Ogletree Deakins, August 2020

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