Sick workers:
Emergency S.F. measure would lend protection to employees
Employees in San Francisco who are unable to work because they have COVID19 or have been exposed to the coronavirus would enjoy beefedup protections under an emergency ordinance introduced by Supervisor Hillary Ronen on Monday.
Ronen said the law is aimed at protecting lowwage workers — many of them essential — who have been reluctant to get tested for the coronavirus because of fear of losing their jobs.
The supervisor said that it’s vital that San Franciscans feel comfortable getting tested and that they won’t be fired if they either test positive, show symptoms or choose to quarantine after exposure to someone with the virus.
“For many San Francisco workers, especially lowwage workers, there is a serious and legitimate reluctance to take a (coronavirus) test if they believe that a positive diagnosis and the need to quarantine could lead to them being fired from their job,” Ronen said. “During these times of economic uncertainty, people are unwilling to do anything that might put their ability to work and earn an income at risk, even if that means foregoing something as important as a (coronavirus) test.”
The ordinance would make it illegal for an employer “to fire, threaten to fire, demote, suspend, discipline, reduce employee benefits, or in any manner discriminate against any worker who is unable to work, or who requests time off work, because they tested positive for (the coronavirus) or are quarantining” due to exposure.
It would also protect job applicants by forbidding employers from inquiring about or requiring coronavirus testing before extending a job offer. Employers would also have to accommodate new hires who must delay their start due to a positive test or the need to selfisolate or quarantine, and could not rescind a job offer because of coronavirusrelated reasons.
The San Francisco Office of Labor Standards Enforcement would investigate reported violations and could order any remedies including the reinstatement of a worker and payment of lost wages and penalties. Employers found to be in violation of the ordinance would pay a penalty of $1,000 for the first violation, $5,000 for the second and $10,000 for each additional violation.
While various city, state and federal laws protect workers against coronavirusrelated firing, Ronen called existing employment law protections “fragmented and incomplete.” While a coronaviruspositive worker in quarantine can’t be fired while officially out on paid or unpaid leave, employees who lack leave benefits — either because they used them up or never had them — can still be fired. It is also confusing which local, state or federal agency a worker should contact if they feel they have been treated unfairly because of the virus.
The impetus for the legislation grew out of a health study conducted by the University of California at San Francisco, in coordination with Ronen and the Latino Task Force on COVID19. The study showed that many workers were not getting tested because they were fearful of losing employment.
Dr. Diane Havlir, head of the UCSF research team that conducted the community health study in the Mission District, said that “lowbarrier testing” is crucial to the city’s response to the pandemic. “This proposed legislation directly removes a key barrier we know discourages people from testing,” she said.
Eduardo Garcia, 39, is a Mission District resident who works as a landscaper. He said that he lives in fear that he could be laid off at any time.
“It has definitely impacted the workplace,” Garcia said. “Every day workers go to work with very little assurances. Workers are worried about being exposed to the virus at work.”
He said the legislation would give workers confidence to get tested without fearing repercussions. “Many workers already face discrimination for being undocumented, and now they are facing it because of coronavirus,” he said.
The measure follows several state and federal laws addressing employment in the time of coronavirus. At the outset of the crisis, the federal Families First Coronavirus Response Act required some employers to give or expand sick leave to employees if they were exposed to the virus or needed to take care of their families.
Locally, Bay Area cities including San Francisco and San Jose have passed legislation providing sick leave for employees impacted by the coronavirus who are not entitled to leave under the FFCRA.
California food sector workers are also entitled to supplemental paid sick leave under an executive order signed by Gov. Gavin Newsom, but only for two weeks and only if a worker is subject to a government or medical quarantine order or if their employer is prohibiting them from working.
Questions of employment discrimination related to the virus have only just begun to arise. Companies have more leeway to delve into worker health during the pandemic, but there are limits.
Normally employers are restricted from asking about a range of health issues to guard against unfair hiring and firing. But in March the Equal Employment Opportunity Commission updated its rules, expanding the list of questions employers can ask workers about virus symptoms. That means employers can already take temperatures at work and require that workers stay home if they might be sick. Similar guidelines were issued in 2009 in response to the spread of the H1N1 flu.
The commission also said employers cannot ask an employee who does not appear ill whether they have other medical conditions that make them more vulnerable to an infectious disease. While the guidance focuses on existing employees, companies can request medical exams for people it intends to hire as long as everyone in a job group is treated the same.
Rescinding an offer because someone has a condition that makes them more vulnerable to the effects of the virus would almost always run afoul of employment rules, however.
Despite those protections, some workers have lost their jobs for refusing to return to work, highlighting where protections fall short as the coronavirus pandemic shows no signs of abating in the Bay Area and nationwide.
Jay Chang of the San Francisco Chamber of Commerce said that “nobody has reached out to the business community about the measure.”
“Broadly we appreciate that the supervisors and everyone concerned is working to make sure employees are treated fairly,” he said. “But I wish the supervisors would communicate more often with the business community when drafting these measures because we are seeing huge unintended consequences from legislation that has already passed.”
He said that earlier employmentrelated legislation — the right to reemployment — has created “miles and miles of paperwork.”
“Small business owners are wracked by administrative burden that they can’t deal with because they are trying to keep their businesses afloat,” he said.