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San Francisco Mulls Ban on Employer Retaliation for Virus Leave

Jan. 11, 2021, 7:00 PM

San Francisco, home to Salesforce, Uber, Lyft, Wells Fargo, and Airbnb, would bar employers there from disciplining, firing, or discriminating against workers who test positive for the coronavirus or isolate because of exposure, under legislation heading for a Jan. 12 vote by the County Board of Supervisors.

The city would bar employers from imposing such punitive actions as reducing work hours. The proposed law‘s goal is to encourage workers to get tested for Covid-19 without fear of losing their jobs or pay.

The protections as written, which cover job applicants and those perceived to have Covid-19, would extend two years after the public health emergency declaration ends.

“San Francisco long’s been a testing ground of ideas and concepts on creating strong workforce protections for workers,” said Ken Jacobs, chairman of the University of California, Berkeley, Center for Labor Research and Education.

It’s unclear whether other cities will follow San Francisco’s lead. The League of California Cities said it was unaware of other cities in the state adopting similar protections.

“I have not seen anything else like this” from cities, said Elizabeth Milito, the National Federation of Independent Businesses’ senior executive counsel.

The 12-page proposed ordinance, which includes a $1,000 fine for first-time violations, “is not helpful in this situation” as businesses do everything they can to keep workers and customers safe, Milito said.

Business Concerns

The San Francisco Chamber of Commerce said its concerns include the administrative burden on already-stressed businesses and creating another way for workers to sue employers.

“We’re not opposed to this legislation per se,” said Emily Abraham, the chamber’s public policy deputy director. “However, we feel this legislation was written for a very specific pandemic and an even more specific economy we’re in.”

Another concern is what happens in two years, Abraham said. The city could still be recovering as its economy looks very different, and there’s a chance of another state of emergency being called while still in a state of emergency from the virus.

Officials at the Golden Gate Restaurant Association, representing thousands of San Francisco restaurants that have been financially hammered by the shelter-in-place orders and indoor and now outdoor dining bans, declined to comment until they reviewed the legislation.

“If it is simply protecting employees from being discriminated against I do not think we would have any issue with it,” association Executive Director Laurie Thomas said in an email.

Removing Barriers

The proposed ordinance’s purpose is to remove a barrier to testing “by addressing workers’ fear of losing employment, and job applicants’ fear of not being able to obtain employment, due to a Covid-19 diagnosis or the need to isolate or quarantine,” the legislation says. That in turn would protect the public and workers to keep the coronavirus from spreading.

The proposed ordinance would make permanent the emergency employment protections in the Safeguard Against Firings and Employer Retaliation, or SAFER Act Mayor London Breed signed last September.

The board’s Government Audit and Oversight Committee approved the ordinance Jan. 7 and forwarded it to the full board for a first vote. The legislation would receive a second, implementing vote, next week before heading to the mayor for her consideration.

The ordinance serves to ensure that worker protections remain in place even after the city’s declared state of emergency is lifted “because we know that the presence of Covid and its impact on workers will likely continue even after the shelter-in-place orders are no longer necessary in San Francisco,” Paul Monge, legislative aide for author Supervisor Hillary Ronen, told the committee.

Employers under the current emergency law and the permanent legislation would be prohibited from counting an employee’s absence from or inability to work, or request for time off work, “as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.”

Employers may take “only reasonable measures to verify that an employee’s absence from or inability to work, or request for time off work, is protected” under the proposed legislation.

“Now more than ever, these protections are critical for frontline workers—especially those who have lost health insurance,” Anand Singh, UNITE HERE Local 2 president, said in an emailed statement. San Francisco supervisors are “stepping in where employers have failed to do the right thing to ensure some protections for workers who are vulnerable during Covid-19.”

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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