On June 23, 2020, the San Francisco Board of Supervisors passed an emergency ordinance temporarily creating a right to reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance, titled “Back to Work” emergency ordinance, requires that as certain employers reopen,  they must first seek to rehire the employee who previously held the position or a similar position before offering the position to another individual. This ordinance takes effect upon signature of the Mayor and will remain in effect for 60 days unless the Board of Supervisors votes to extend its application.

This new emergency ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.

Employees are covered by the ordinance if they were employed for at least 90 days of the calendar year preceding a covered layoff. Covered layoffs are limited to any layoff of 10 or more employees in any 30 day period starting on February 25, 2020, until the expiration of the ordinance, and was caused by the employer’s lack of funds or lack of work due to the COVID-19 public health emergency declared by both the mayor of San Francisco and the governor of California.

Employers covered by the “Back to Work” emergency ordinance have the following obligations:

• Employers must provide eligible employees with written notice of a covered layoff and the right to reemployment, at or before the time the layoff becomes effective. If a covered layoff has already occurred, the employer has 30 days from the effective date of the ordinance to provide written notice to eligible employees.

• As employers reopen, they must first seek to rehire the employee who previously held the position, or a substantially similar position, before offering the position to another individual. Such offers of reemployment must be made in order of seniority if more than one eligible worker could be rehired for the same position. An employer is permitted to withhold an offer of rehire if after layoff it was discovered the employee engaged in any act of dishonesty, violation of the law, violation of policy, or rule of the employer. An employer may also withhold an offer of rehire if the employee executed a severance agreement at the time of layoff.

• Employers must also notify the Office of Economic Workforce Development in writing of all covered layoffs and offers of reemployment made under the ordinance, as well as all acceptances and rejections of rehire offers by eligible employees.

• Employers that implement covered layoffs must retain the following records for at least two years: eligible employee’s full legal name, job classification at the time of separation, date of hire, last known address, last known email address, last known telephone number and a copy of the lay off notice provided.

• The ordinance prohibits employers from discriminating against an eligible employee who is experiencing a “Family Care Hardship”, which includes needing to care for a child due to school closures or lack of available childcare, or any grounds for which a person may use paid sick leave to care for another.  Eligible employees are entitled to reasonable accommodation of job duty or job requirements if a Family Care Hardship impacts their ability to perform a job duty or to satisfy a job requirement.  Employers must make a good faith effort to reasonably accommodate an eligible employee.  This duty to accommodate expires with the expiration of the ordinance.