On October 1, 2013, the San Francisco Board of Supervisors approved an ordinance that will give employees the right to request flexible work arrangements to assist with caregiver responsibilities.  San Francisco employers will be required to consider and respond to all such requests in a formal manner.

San Francisco Mayor Ed Lee has stated that he intends to sign the Family Friendly Workplace Ordinance into law.  The Ordinance’s supporters claim that it will address the high attrition rates of families leaving San Francisco, while noting that San Francisco has the lowest percentage of children of any major city.  However, the Ordinance is likely to further burden employers who already are forced to face the many unique challenges of doing business in San Francisco.

The Ordinance will apply to employers and their agents who regularly employ 20 or more employees.  Under the Ordinance, employees who have been employed for six or more months and work as little as eight hours per week have the right to request a flexible work arrangement to assist with caregiver responsibilities for:  (1) a child; (2) a parent age 65 or older; or (3) a spouse, domestic partner, parent sibling, grandchild or grandparent with a serious health condition.  Employees may request any type of flexible work arrangement, such as part-time employment, a modified work schedule, telecommuting, an alternative work week or a job sharing arrangement.  Employee requests must be made in writing and must detail how the requested arrangement will assist with the employee’s caregiving duties.

Employers are required to respond to all written requests for flexible work arrangement both verbally and in writing.  First, the employer must meet in person with the employee within 21 days of the request being made.  The employer thereafter must respond in writing within 21 days of the in-person meeting with the employee.  The employer’s written response may either grant the request with confirmation of the arrangement or deny the request.  In the event an employer denies the request, the employer must detail a business reason for the denial and notify the employee of the right to request reconsideration within 30 days.

The Ordinance is explicit in the requirements for a written denial of a request for a flexible work arrangement.   The employer is required to provide a “bona fide business reason” for the denial, such as productivity loss, a detrimental effect on meeting customer demands, an inability to organize work among employees or insufficient work during the time the employee proposes to work.  An employer denying a request also must provide the employee with the text of the Ordinance granting reconsideration rights.  This text provides:

(a)  An Employee whose request for Flexible or Predictable Working Arrangements has been denied may submit a request for reconsideration to the Employer in writing within 30 days of the decision.

(b)  If an Employee submits a request for reconsideration under this Section, the Employer must arrange a meeting to discuss this request to take place within 21 days after receiving the notice of the request.

(c)  The Employer must inform the Employee of the Employer’s final decision in writing within 21 days after the meeting to discuss the request for reconsideration.  If the request for reconsideration is denied, this notice must explain the Employer’s bona fide business reasons for the denial.

The Ordinance allows eligible employees to make two requests per year.  However, an employee may make additional requests following the birth of a child, the placement of a child through adoption or foster care, or an increase in the employee’s caregiving duties for a family member with a serious health condition.

The San Francisco’s Office of Labor Standards Enforcement (OLSE) will be responsible for enforcement of the Ordinance.  The OLSE intends to publish mandatory posters providing employees notice of their rights under the Ordinance.  Employers will be required to post notices in English, Spanish, Chinese and any other language spoken by at least 5% of employees at that site.  The OLSE also will manage compliance with the Ordinance through employer audits and handle claims of retaliation or interference with employees’ rights under the Ordinance.  Accordingly, employers are required to maintain documentation of employee requests for 3 years.

The Ordinance will take effect on January 1, 2014.  As San Francisco employers prepare for the new year, they should be aware of the requirements under the Ordinance.  Employers outside the city limits also should consider whether the Ordinance applies to their agents.