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Covered Employers

What obligations are Covered Employers required to meet?

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Under the Health Care Security Ordinance (HCSO), all Covered Employers must meet the following obligations:

1.    Make the required Health Care Expenditures for all Covered Employees;
2.    Maintain records sufficient to establish compliance;
3.    Post a HCSO Notice in all workplaces with Covered Employees; and
4.    Submit a HCSO Annual Reporting Form to the Office of Labor Standards Enforcement (OLSE) by April 30th of each year.

Which employers are “Covered Employers”?

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An employer is covered by the HCSO for any calendar quarter if it meets the following three conditions, regardless if it’s located outside of San Francisco:

  1. Employs one or more workers within the geographic boundaries of the City and County of San Francisco;
  2. Is required to obtain a valid San Francisco business registration certificate; and
  3. Is a for-profit business with 20 or more persons performing work or a nonprofit organization with 50 or more persons performing work. This includes all persons working for the entity, regardless of whether they are located in San Francisco or outside of the City.

Who should be counted in determining employer size?

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All persons performing work for compensation* for the employer should be counted (not just Covered Employees). This includes:

  1. Persons who work in San Francisco and those who work outside of San Francisco;
  2. All employees, regardless of their status or classification as seasonal, permanent or temporary, full-time or part-time, contracted (whether employed directly by the employer or through a temporary staffing agency, leasing company, professional employer organization, or other entity), or commissioned;
  3. Owners who perform work for compensation.

*Compensation includes money, benefits, or in-kind compensation, such as room and board, etc.

How is employer size determined if the number of persons performing work changes from week to week?

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For businesses employing a fluctuating number of persons during a quarter (13 weeks), employer size is based on the weekly average number of persons performing work for compensation during that quarter.

For example: a business that employs 5 persons during the first 6 weeks of the quarter and 20 persons during the last 7 weeks of the quarter would not be covered by the HCSO because it has employed an average of only 13 persons per week during that quarter:

[(5 persons/week x 6 weeks) + (20 persons/week x 7 weeks)]/13 weeks = 13 persons/week.

What if an employer owns and operates three unrelated businesses?

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Businesses that are a “controlled group of corporations” are considered to be a single employer under the HCSO, and all employees of each entity would be counted to determine the size of the employer. If the businesses are incorporated and not members of a “controlled group of corporations” then each is considered a separate business, and the employees of each separate entity will be counted to determine the size of each employer.

Employees of businesses that are not incorporated are counted as working for one employer if the businesses are under common control. For purposes of the HCSO, “under common control” means either (a) one person (individual, estate, or trust) has at least an 80 percent ownership interest in each of the businesses, or (b) the same two to five persons hold more than a 50 percent ownership interest in each of the businesses.

Note that while some corporations may be excluded from the “controlled group of corporations” analysis for income tax purposes, they are not excluded for purposes of the HCSO. It’s best to seek the advice of legal and/or tax counsel to determine controlled group or common control status.

Are temporary staffing agencies or professional employer organizations (PEOs) responsible for making Health Care Expenditures under the HCSO?

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Both the client and the temporary staffing agency, professional employer organization (PEO), or similar entity may be considered a Covered Employer under the HCSO, and each Covered Employer shall have an obligation to ensure that the Employer Spending Requirement has been met. Under California law, a person or entity “employs” a worker if the person or entity: (1) exercises control over the worker’s wages, hours or working conditions, (2) permits the worker to work, or (3) engages the worker (i.e., creates a common law employment relationship).

If a temp agency or PEO performs any of these functions, then that entity is considered a “joint employer,” along with the client for whom the employee performs the work. If there is a joint employment relationship, both entities are responsible for the required Health Care Expenditures. Either entity may make the expenditures, but both can be held liable if the expenditures are not made.

The Health Care Expenditure rate is determined by the size of the larger employer. For example: if a temp agency has 200 employees and the employer at the work site has only 30, the Health Care Expenditure rate for large employers applies.