Monday, March 27, 2023 | Back issues
Courthouse News Service Courthouse News Service

San Francisco Bans Discrimination of Workers With Covid-19

Plugging a gap in state and federal laws that could deter workers from getting tested for Covid-19, San Francisco officials passed an ordinance Tuesday that prevents employers from firing or discriminating against workers who have or had the novel coronavirus.

SAN FRANCISCO (CN) — Plugging a gap in state and federal laws that could deter workers from getting tested for Covid-19, San Francisco officials passed an ordinance Tuesday that prevents employers from firing or discriminating against workers who have or had the novel coronavirus.

The emergency ordinance temporarily bars employers from taking adverse action against employees and job applicants who tested positive for Covid-19 or who are or were isolating due to Covid-19 symptoms or exposure.

Violators could face fines of $1,000 for the first offense, $5,000 for the second offense and $10,000 for third and subsequent violations.

The San Francisco Board of Supervisors unanimously approved the ordinance with no discussion or debate Tuesday. The law will take effect immediately once signed by the mayor and will expire after 61 days unless reenacted by the board.

District 9 Supervisor Hillary Ronen, who introduced the ordinance, has argued the emergency law is necessary to protect public health. Many low-wage and essential workers may be reluctant to get tested for Covid-19 if they think a positive diagnosis will jeopardize their ability to keep or get a job and provide for their families, she and her legislative aides wrote in the amended text of the ordinance.

Ronen represents the Mission District, a largely Latino neighborhood that has been ground zero for Covid-19 outbreaks in San Francisco with 1,276 confirmed cases, more than any other city neighborhood as of Sept. 1.

A recent health study by the University of California, San Francisco, of nearly 3,000 Mission District residents found 95% of those who tested positive for Covid-19 were Hispanic or Latino. Only 10% were able to work from home and 85% reported being financially affected by the pandemic.

Current state and federal laws might protect workers from Covid-related retaliation, but the laws do not clearly prohibit discrimination based on an employee contracting an illness or disease, explained UC Berkeley law professor Catherine Fisk.

If the effects of Covid-19 are not particularly severe or long-lasting for an employee, it might not qualify as a disability covered under state and federal laws that forbid disability discrimination, she said.

“What the San Francisco ordinance would do is eliminate that confusion or uncertainty,” Fisk said. “It would make it clear that if the firing is just an irrational fear without any basis in public health, such as to order somebody to self-isolate to prevent transmission, then the firing is illegal.”

This is not the first time concerns have been raised about employers discriminating against workers for contracting a communicable disease. A similar pattern of discrimination was directed at workers infected with HIV/AIDS before accurate information about the disease became more widely known.

“When people misunderstood how the disease was transmitted and they simply fired workers who they thought might be infected, it was necessary in law to restrict those firings to prevent irrational or biased fears from influencing personnel decisions,” Fisk said of HIV discrimination.

Today, an HIV diagnosis is covered under disability discrimination laws because it is considered a long-term disease, Fisk explained.

Federal lawmakers also recognized the need to eliminate barriers that might discourage workers from get tested for Covid-19 or isolating when Congress passed the Families First Coronavirus Response Act in March. The law provides up to two weeks of paid sick leave for most workers diagnosed with Covid-19 or caring for a family member with Covid-19, along with 10 weeks of expanded family leave for those caring for children for whom child care is not available due to the pandemic.

Also on Tuesday, San Francisco reopened outdoor hair and nail salons, outdoor massage services, outdoor pools and indoor malls with limited capacity for the first time since March. The city plans to reopen outdoor fitness centers on Sept. 9.

“Since March, people have been struggling financially, mentally, and emotionally, and being able to continue our gradual reopening of businesses and activities will help to ease some of that burden,” San Francisco Mayor London Breed said in a statement Tuesday. “We remain committed to making decisions based on data and our local conditions with Covid-19, and our next steps take a balanced and thoughtful approach to reopening.”

Hotels, tour buses and boats, indoor museums, and classrooms for transitional kindergarten through sixth grade are slated to reopen with certain restrictions by mid-September.

San Francisco intends to open indoor hair and nail salons, massage parlors and houses of worship with limited capacity by the end of September. Middle schools are slated to reopen on a rolling basis in October, and high schools would open in November if the city continues to meet benchmarks for keeping the virus contained.

“Our priority has always been to protect the health and safety of the people of San Francisco,” Breed said.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.