Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they perform their duties, and (iii) prohibits retaliation against employees “for refusing to perform work under conditions they believe may be unsafe or for reporting such conditions or exercising rights protected by the ordinance.” The Ordinance will expire 61 days from its enactment unless reenacted.
The Board asserts that the Ordinance is necessary to ensure that “hotels and commercial office buildings reopen in the safest manner possible, and as quickly as possible.” However, the Hotel Council of San Francisco and two other industry groups, the California Hotel and Lodging Association and the American Hotel & Lodging Association, have filed a lawsuit to overturn the Ordinance, which they characterize as an “unsafely misguided attempt to create work for hotel employees, namely housekeepers.” The groups allege that the measure “endangers hotel employees and guests and causes significant economic hardships by forcing many hotels to remain closed and to permanently lay off thousands of workers.” They further assert that the Ordinance ignores various San Francisco environmental mandates that “reduce the waste of resources such as water, chemicals, and electricity” tied to greenhouse gas emissions.
The Ordinance’s mandates apply to: (i) “tourist hotels,” defined as any buildings or sets of buildings containing six or more guest rooms or suites “intended or designated to be used for commercial tourist use by providing accommodation to transient guests on a nightly basis or longer;” and (ii) “large commercial office buildings,” defined as private buildings or sets of buildings consisting of more than 50,000 square feet of office space. The Ordinance excludes from its mandate any buildings or sets of buildings owned by City, state, local, or federal governments. The Ordinance covers an “operator” of such an establishment, which means “any person or business entity that employs or hires Employees directly or indirectly at a Covered Establishment.”
Employee protections under the Ordinance apply to full-time, part-time, casual and on-call employees, and independent contractors and their employees “who perform work” at a covered establishment, “whether employed or hired directly” by the operator of the establishment or by another entity.
Mandated Cleaning Standards
The Ordinance requires the operator of every covered establishment to:
- Develop and implement written standards “designed to reduce the transmission of COVID-19 and other Contagious Public Health Threats.”
- Provide hand washing stations on every floor of the establishment.
- Disinfect porous and, to the extent possible, non-porous surfaces with disinfectants that are “effective against viral pathogens.” Bleach and alcohol solutions must meet San Francisco Department of Health (“DOH”) standards for effective use.
- Identify “high-contact” “areas, items, and fixtures” with which employees or guests may be expected to have regular physical contact, such as elevators, stairways and restrooms, as well as surfaces (including walls, windows, drapes, floors and rugs) in lobbies, lounges, waiting areas, hallways and employee breakrooms and locker rooms, and clean them at least “multiple times” a day.
- Designate “dedicated personnel responsible for regularly disinfecting exterior doors,” and assign “a gloved employee” to open any exterior doors that “cannot open automatically or be propped open.”
- Maintain a compliance log of all cleaning and sanitation performed in compliance with the Ordinance and make it available to the DOH upon its request.
- Supply personal protective equipment to all employees as needed and personal hand sanitizer to all employees who deal with the public, free of charge.
- Comply with any DOH recommendation that employees undergo COVID-19 testing, free of charge to the employees, and pay employees for time spent getting tested, “including time required to travel to and from testing sites.”
- Train employees “in the proper use of cleaning and disinfection products per the product manufacturer’s guidelines and Cal/OSHA safety requirements.” (See discussion below on training.)
- Post copies of the cleaning standards in areas where employees “regularly receive daily instruction regarding work duties and on bulletin boards where the operator regularly posts official communications with employees.”
- Translate the standards into any language spoken by at least 20 percent of employees.
- Upon request, make copies of the cleaning standards available to guests, employees, and employees’ bargaining representative(s).
- “Expeditiously” provide employees and their bargaining representative(s) with any government guidance, notices, or advisories, if directed to do so by the issuing authority.
Additional Standards for Covered Hotels
- On a daily basis, clean and disinfect every surface of a guest room, including the restroom, which has been occupied in the preceding 24 hours unless the guest affirmatively requests otherwise, including walls, windows, floors and rugs. Guests may not be offered incentives to decline daily room cleaning.
- Change bed linens and towels daily.
- Clean all dirty linens and laundry “at high temperatures and according to the CDC Guidelines for Environmental Infection Control in Health-Care Facilities.”
- If there is “a reasonable basis to believe” that a COVID-19-infected person may have occupied a guest room, that room may not be occupied until it is deemed safe by the DOH.
- Install hand sanitizer dispensers at exits and entrances and at numerous other specified high-contact locations throughout the establishment.
Covered employers must provide “comprehensive and ongoing training” to all employees, including independent contractors and their employees, who are “assigned cleaning duties pursuant to this ordinance” on the following matters:
- “Contagious Public Health Threat” symptoms;
- How Contagious Public Health Threats are spread;
- How the spread of such threats can be prevented;
- The mandates contained in the Ordinance; and
- Employee “rights and responsibilities” under the Ordinance.
Employees must be paid for time spent in training and the employer must conduct the training in a language in which the employee is “fluent.”
Prohibition on Retaliation
Employees may not interfere with an employee’s exercise of his or her rights under the Ordinance or take any adverse employment action against an employee, including imposing “fees or charges,” because the employee:
- opposes any practice prohibited by the Ordinance or participates in proceedings related to the Ordinance;
- seeks to enforce his, her, or their rights or the rights of another employee under the Ordinance; or
- reports or discloses work conditions or refuses to perform work that the employee “believes poses a personal health risk or a health risk to others because of a failure to adhere to the requirements” of the Ordinance.
Violations and Penalties
A violation of the Ordinance constitutes a “nuisance” under Health Code Section 581. Additionally, the Ordinance grants employees the right to bring a civil action and recover damages and reasonable attorneys’ fees and costs.