e-Alert: San Francisco Now Requires Supplemental Paid Military Leave

Summary

Covered Employers and Employees

This new law applies to private employers with 100 or more employees regardless of location. Qualified employees must work in San Francisco, be a member of the reserve corps of the United States Armed Forces, National Guard, or another U.S. uniformed service organization, and be absent from work for “military duty.” The ordinance defines “military duty as:

Active military service in response to the September 11, 2001 terrorist attacks, international terrorism, the conflict in Iraq, or related extraordinary circumstances, or military service to provide medical or logistical support to federal, state, or local government responses to the COVID-19 pandemic, natural disasters, or engagement in military duty ordered for the purposes of military training, drills, encampment, naval cruises, special exercises, Emergency State Active Duty, or like activity.

It should be noted that the law extends to part-time and temporary employees, but not to employees who are covered by a bona fide collective bargaining agreement that explicitly waives the ordinance’s requirements.

Supplemental Compensation

Covered employers are required to pay eligible employees the difference between their military pay and the gross amount they would have received if they were to work their regular schedule. Overtime does not need to be included in the calculation unless overtime is regularly scheduled. The ordinance allows employees to receive supplemental compensation in daily increments of one or more days at a time for up to 30 days in a calendar year. Employers may offset the supplemental compensation by any amount paid through another policy or law. There is no established detailed structure for requesting, calculating, processing, or paying supplemental compensation from the MLPPA.

Military Compensation

In order for an employee to receive paid military leave, the employer must understand the employee’s military pay to be compliant. This may come as a challenge because although employers can access calculators online to determine pay, the information varies based on several factors. The best way to ensure compliance with the law is to request a copy of the military member’s current or most recent leave and earnings statement (LES). The LES will help an employer ensure the calculation of the pay is appropriate.

If a qualified employee receives supplemental wages during a military leave and is fit for re-employment in their previous position upon release from military duty but does not return to the position within 60 days of their release, then the ordinance allows the employer to treat supplemental compensation as a payable loan with interest. The interest and the loan repayment can begin 90 days after the employee’s release from the military or return to employment, whichever is later. The loan must be repaid in equal monthly installments over a period of time but must not exceed five years. It should be noted that employers seeking repayment should be mindful of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) guidelines. Under USERRA, if an employee has been on military leave for more than 180 days, the employee has 90 days to request reemployment.

Employer Next Steps

• Covered employers should review their leave policies and be prepared to update their handbook to include the new ordinance
• Consider preparing for leave requests by asking military members for a copy of their current or most recent LES
• Employers should continue to monitor the San Francisco OLSE website as more guidelines will be posted
• If you are a Full-Service or Virtual HR client and would like our assistance with updating your policy, please email us

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This content is provided with the understanding that HR Knowledge is not rendering legal advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. The material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable laws in your jurisdiction and consult experienced counsel for legal advice. If you have any questions regarding this content, please contact HR Knowledge at 508.339.1300 or email us.