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.

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. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

Michelle Barineau

Michelle Barineau counsels clients on a broad range of labor and employment issues. She helps clients navigate matters involving discrimination, harassment, family and medical leave, wage and hour compliance, non-competition, trade secrets, and other issues arising under state and federal employment laws. She…

Michelle Barineau counsels clients on a broad range of labor and employment issues. She helps clients navigate matters involving discrimination, harassment, family and medical leave, wage and hour compliance, non-competition, trade secrets, and other issues arising under state and federal employment laws. She routinely provides guidance pertaining to employee handbooks, employment agreements, and workplace policies. Michelle also has experience investigating employment complaints and she frequently partners with white collar colleagues to conduct internal workplace culture assessments and audits in the wake of the #MeToo movement.