The City and County of San Francisco (the “City”) has significantly amended its Family Friendly Workplace Ordinance (“FFWO”), which gives employees the right to make a written request for a flexible or predictable working arrangement to allow them to balance family caregiving responsibilities. The amended FFWO, which took effect on July 12, 2022, loosens employee eligibility requirements and expands employer obligations, including by providing that employers must provide a flexible or predictable work arrangement upon request unless the arrangement would impose an undue hardship on the employer. The FFWO continues to cover employers that have 20 or more employees and maintain a physical business location in San Francisco.

Key Changes to the FFWO

With regard to employee eligibility, the FFWO, which previously only applied to employees who worked at least eight hours per week in the City, now covers teleworking employees, regardless of whether they reside in the City, as long as they are “assigned to a San Francisco business location” at the time of their request under the FFWO. Whether an employee is “assigned to” a San Francisco location depends on factors including where the employee worked before teleworking and the employee’s proximity to the business location.

Furthermore, the amended ordinance now permits eligible employees to request a flexible or predictable work arrangement to care for a person in a “family relationship” with the employee if that person is age 65 and older or has a serious health condition. “Family relationship” means related to the employee by blood, legal custody, marriage, or domestic partnership as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent; previously, the FFWO limited this to care for a parent only. The FFWO also continues to allow eligible employees to request a flexible or predictable work arrangement as needed to care for a child or children for whom the employee has assumed parental responsibility.

In another significant change to the FFWO, covered employers are now required to grant eligible employees’ flexible or predictable schedule requests, which can include requests for telework, unless the employer can demonstrate that the arrangement would be an “undue hardship,” defined as a “significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the Employer’s business.” When determining whether a requested arrangement poses an undue hardship, employers may consider the identifiable costs directly caused by the arrangement, including but not limited to the cost of productivity loss, retraining or hiring employees, the detrimental effect on ability to meet customer or client demands, and the availability of work during the time or at the location the employee proposes to work. In updated FFWO rules, the City’s Office of Labor Standards Enforcement (“OLSE”) provides several examples of what would constitute undue hardship, including when an employee’s requested schedule would require the employee to miss a mandatory meeting or if the request would cause the employer to pay the employee overtime wages. 

The amendments also make some modifications to the process for granting or denying FFWO requests. Employers must still respond in writing within 21 days of the employee’s written request, but now if the employer does not agree to the request, the employer must initiate an interactive process with the employee to identify an alternative arrangement. And, if the employer ultimately denies the request it must explain in writing the basis for the undue hardship.

The amendment also increases penalties for violations of the law, by requiring violators to pay for the cost of care the employee or person whose rights were violated incurred due to the violation if that cost is greater than the $50/day penalty scheme now in effect.

What Employers Should Do Now

Employers with a business location in San Francisco should ensure they have compliant procedures in place to consider requests for flexible or predictable work arrangements, including by designating a person or department responsible for making determinations and engaging in the interactive process, and ensure that they are properly documenting the process. Employers should also consider which employees will qualify for FFWO coverage, which may include an assessment of teleworkers’ assigned offices. Finally, covered employers must update their current FFWO poster and make that available to its employees. More information on the FFWO can be found on the OLSE’s FFWO web page.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

As a senior member of Covington’s Institutional Culture and Social Responsibility Practice Group, Carolyn has co-led significant investigations into workplace culture, DEI issues, and reports of sexual misconduct and workplace harassment.

As an employment lawyer with over two decades of experience, Carolyn focuses on a wide range of compliance and regulatory matters for employers, including:

  • Conducting audits regarding employee classification and pay equity
  • Advising on employment issues arising in corporate transactions
  • Strategic counseling on a wide range of issues including discrimination and harassment, wages and hours, worker classification, workplace accommodations and leave management, performance management and termination decisions, workplace violence, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies
  • Drafting employment contracts and offer letters, separation agreements, NDAs, and other employment agreements
  • Advising on employee privacy matters, including under the California Consumer Privacy Act
  • Providing guidance on use of AI in the workplace and development of related policies
  • Leading anti-harassment and other workplace-related trainings, for employees, executives, and boards

Carolyn also works frequently with the firm’s white collar, privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups.

Photo of Michelle Barineau Michelle Barineau

Michelle Barineau counsels U.S. and multinational clients on a broad range of employment issues. Michelle routinely provides guidance pertaining to wage and hour compliance, job classifications, pay equity, and employee leave. She also prepares key employment documents including employment agreements, employee policies, and…

Michelle Barineau counsels U.S. and multinational clients on a broad range of employment issues. Michelle routinely provides guidance pertaining to wage and hour compliance, job classifications, pay equity, and employee leave. She also prepares key employment documents including employment agreements, employee policies, and separation agreements.

Michelle guides employers through hiring and terminating employees and managing their performance, as well as workforce change strategies, including reorganizations, reductions in force, and WARN compliance. In addition, Michelle provides practical advice about workplace issues impacting employers including remote work, workplace culture, diversity, equity, and inclusion, and the use of artificial intelligence in the workplace. She helps clients navigate matters involving harassment, discrimination, non-competition, and other issues arising under state and federal employment laws including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. She assists clients when responding to agency charges and demand letters, including whistleblower retaliation complaints, and frequently interacts with the Equal Employment Opportunity Commission, state and local equal employment opportunity agencies, and the Occupational Safety and Health Administration.

Michelle has experience investigating employment complaints and she frequently partners with white collar colleagues to conduct sensitive internal investigations, workplace culture assessments, and racial equity audits. She works with colleagues in the privacy, employee benefits and executive compensation, and corporate groups when employment matters arise and she regularly works with colleagues in California to advise on matters implicating California employment laws. Michelle is a co-founder of Covington’s AI Roundtable, which convenes senior lawyers at the firm working closely on AI issues to discuss legal implications of AI deployment and use.