Authors: Charles L. Thompson, IV (San Francisco), Christopher W. Olmsted (San Diego), Hera S. Arsen, Ph.D. (Torrance)
Published Date: November 10, 2014
On September 10, 2014, Governor Jerry Brown signed the Healthy Workplaces, Healthy Families Act of 2014. The Act requires California employers to provide employees with one hour of paid sick leave for every 30 hours worked starting on July 1, 2015. Since the California legislature passed the law and even before Governor Brown signed it, we have received many questions regarding how the law works and what employers must do to prepare for it. Below, we have provided answers to some of the most frequently asked questions about the law. Topics include employers’ sick leave obligations, administration of sick leave, and the interplay between sick leave and other state and local leave requirements.
What is the effective date of the new law?
Employers must comply with the new law starting on July 1, 2015.
COVERAGE AND ELIGIBILITY
Which employers are covered under the new law?
An employer only needs to have one employee who works 30 or more days in California within a year from the commencement of their employment.
Which employees are eligible to receive sick pay?
Under the law, an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the start of employment is eligible for paid sick leave. The law covers exempt, part-time, and temporary employees. Employees must have been employed for 90 days before they can begin using their accrued sick leave, even though they actually begin accruing the leave itself at the commencement of employment or July 1, 2015, whichever is later.
Please note that even though the law takes effect on July 1, 2015, employees can meet the 30-day employment requirement before that date.
How does California sick pay apply to employees who work in California on an occasional basis, for example, 120 days out of the year?
The statute applies to employees who work in California for 30 or more days within a year. These days need not be continuous. Therefore, an employee working in the state for 120 days out of the year would accrue 1 hour of sick pay for every 30 hours worked in the state.
Are we required to provide sick leave for temporary employees?
Yes, if you are the employing entity. The law requires an employer to provide its own employees with 1 hour of accrued paid sick leave for every 30 hours worked regardless of whether the employer designates the employee as temporary, permanent, or another classification. Employers are not required to provide paid sick leave to temporary employees who are actually employed by another entity, such as a staffing agency. In that situation, the staffing agency has the responsibility to provide paid sick leave.
We have per diem employees who fill in for employees who are on leave, taking vacation, etc. Are they eligible for paid sick leave?
Yes, so long as you are the employer and they work at least 30 days within a year.
We have a more generous paid time off (PTO) policy for employees that work 30 or more hours per week. Once this law goes into effect, can we institute a different PTO policy for employees who work less than 30 hours per week?
Yes, but doing so will not change your obligations under the statute. The law sets an accrual rate of 1 hour for every 30 hours worked, regardless as to the number of hours an employee works per week. Implementing a different PTO policy for employees who work 30 or more hours per week and those who work less than 30 hours per week will not change the state accrual rate. Having said that, an employer can implement different PTO policies for different categories of employees, including for those employees who work less than a full-time schedule.
REASONS FOR LEAVE
For what reasons may employees take paid sick leave under the law?
Employees may use the paid sick leave for the employee’s own health condition and for a family member’s health condition. In addition, employees may use the paid sick leave if they are a victim of domestic assault, sexual violence, and/or stalking.
How does the law define “family member”?
Under the law, family member includes the employee’s spouse, registered domestic partner, grandparent, grandchild, and sibling. Because grandparent, grandchild, and siblings are not family members under the California Family Rights Act, the legislation expands the types of family members for which an employee can take protected leave.
Is an employee who takes time off for an annual physical or flu shot entitled to use sick pay under “preventive care”?
Yes. The statute permits an employee to use accrued paid sick time for preventive care. Presumably that would include physicals and flu shots.
ACCRUAL AND CAPS ON LEAVE
At what rate do employees accrue sick leave under the law?
Employees will accrue one hour of paid sick leave for every 30 hours worked. This comes to a little more than eight days a year for someone who works full time.
Can employees accrue paid sick leave on a fractional basis? For example, if an employee works 15 hours, do we have to credit him or her with half an hour of paid sick leave?
We don’t think so. The statute only requires that an employee accrue once an employee works 30 hours.
Please clarify the maximum accrual under the statute. Is it 24 or 48 hours?
The statute permits but does not require employers to cap use of sick pay at 24 hours or three days per year. The statute also permits but does not require employers to cap accrual of sick pay at 48 hours or 6 days. This means that if the employer imposes such caps, an employee may have more sick pay accrued “on the books” than he or she can use in any given year. The purpose of allowing employees to accrue more sick pay than they can use is so that employees will have sick leave available to use at the beginning of the new year.
Are employers permitted to cap employees’ accrual of paid sick leave?
Yes. Employers may cap an employee’s total sick leave accrual at a maximum of 48 hours or 6 days.
Are employers permitted to cap employers’ use of paid sick leave?
Yes. Employers may limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment.
How do we define the “year” for capping the use of paid sick leave to 24 hours in each year of employment? Is the “year” automatically July 1 since the law comes into effect on that date?
No. The statute requires that the employee receive the minimum paid sick leave “for each year of employment or calendar year or 12-month basis.” An employer could therefore define the “year” as any 12 consecutive calendar months.
If a company elected to use the lump-sum upfront 3 days of leave per year, would it still need to provide the amount of time used or the time remaining on the wage statement and allow carryover of unused sick leave to the next year, subject only to the 48 hours/6 days maximum accrual?
Even employers that provide employees with a lump-sum sick leave bank of 24 hours/3 days at the beginning of the year must provide employees with written notice of the number of leave hours available for the purposes set forth in the statute. However, if the employer provides the employee with the 24 hours/3 days lump sum balance at the beginning of the year, it would not be required to allow carryover into the next year so long as the employer provided the 24 hours/3 day lump sum at the beginning of the next year as well.
What happens to unused but accrued paid sick leave at the end of the employment relationship?
Employers are not required to pay out accrued unused sick leave at time of termination. However, under the new law, former employees who are rehired within one year regain their previously unused, accrued sick leave bank.
USE AND NOTICE
What are the new law’s main requirements on employees’ use of paid sick leave?
Employees can begin using their paid sick days on the 90th day of their employment. Employers must permit the employee to use the paid sick leave upon an oral or written request. Where the need for sick leave is “foreseeable,” the employee must give reasonable advanced notice. The employee need only give notice “as soon as practicable” when the need for leave is “unforeseeable.”
How much notice must an employee give? Can the employee call on the day that he or she will be out, an hour before the start of the shift?
The statute states that if the need for paid sick leave is foreseeable, the employee must provide reasonable advance notification. The statute does not define “reasonable advance notification.” If the need for leave is unforeseeable, the employee must provide notice as soon as practicable. Hypothetically, if an employee discovered that his or her child was ill shortly before the scheduled start time, the employer would be obligated to allow the paid time off.
Does the law provide any guidance on the increments in which the employee may use these sick pay hours?
Sick leave may be used in increments of less than one day. Employers may set a minimum increment use not to exceed two hours.
Does the new law require employers to advance paid sick leave to employees who need it before they have accrued any or enough leave?
No. An employer may elect to advance sick leave to an employee before it is accrued, but is not required to do so under the law.
Are employers required to permit employees to carry over unused but earned paid sick leave?
Under the new law, all unused sick leave that the employee accrued under the statute will carry over to the following year of employment. However, if an employer wants to avoid the administrative burden of tracking accruals and carryover, the statute permits employers to provide the full allotment of sick leave (3 work days/24 hours) at the beginning of each year. The statute does not clarify if “year” in this context refers to year of employment, calendar year, or something else. Sick leave accruals may be capped at 48 hours (six workdays).
We have an attendance policy that counts the number of unexcused absences for counseling purposes. For example, a verbal warning for 6 unexcused absences, a written warning for 8 absences, etc. Does the new law prevent companies from continuing to discipline employees for excessive absences?
The statute prohibits an employer from disciplining an employee for using sick days accrued under the statute. If an employee used paid sick days for the purposes described in the statute, disciplining the employee for taking “unexcused” absences could give rise to a retaliation claim. An employer might consider drafting an attendance policy that imposes discipline for legitimate business reasons for absences that take place after an employee has exhausted his or her annual allotment of state mandated paid sick days.
At what rate of pay must employers pay employees who have taken sick leave?
Employers are required to pay an amount equal to the employee’s regular hourly wage for each hour of sick leave used. Such payment must be made by the payday for the next regular payroll period after the leave was taken.
We have employees who are paid commissions or on a piece-rate basis. Their hourly rate fluctuates each week. What rates are we required to use to pay the sick pay?
If the employee is paid by commission or piece rate or otherwise has a variable hourly wage or is a non-exempt, salaried employee, the rate of pay is calculated by dividing the employee’s total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods in the prior 90 days of employment.
Our salary employees receive payment via direct deposit and have access to a website that displays their monthly earnings statements. Are we compliant if we update this electronically available document to either a) include a separate document or b) or incorporate into the already available statement, the hours of sick leave available to each employee?
We believe so. The law requires that the employer provide employees written notice of the amount of statutory paid sick leave (or PTO that can be used for statutory paid sick leave) on either the employee’s itemized wage statement or in a separate writing. You will be providing the information on the itemized wage statement that the employees receive electronically.
Our hourly employees punch in through time clocks located throughout the facility. Are we compliant if we incorporate each employee’s available sick leave into the system so they have unrestricted access or do we need to provide a separate, hard-copy document each pay period?
We believe that you need to provide a separate document to the employees or include the information in their itemized wage statement.
We give our employees an opportunity twice a year to cash out their PTO. Can we still do that?
Yes, we believe this is practice does not violate the new sick leave law.
May our company continue its practice of cashing out unused sick days at end of the year?
Yes. The statute does not prohibit cashing out sick pay. Presumably this would be an allowable practice.
LOCAL, STATE, AND FEDERAL LEAVE LAWS
When compared to the San Francisco paid sick leave ordinance, is the state statute equal to or better than the San Francisco ordinance? Are there any terms in the state statute that are above and beyond the San Francisco ordinance?
The state statute is more generous than the San Francisco paid sick leave ordinance in that the state statute allows the employee to use the leave for “safe time” (sexual assault, stalking, domestic violence), as well as for health reasons. The city ordinance is more generous in that it allows an employee to accrue up to 72 hours of paid sick leave. The city ordinance also allows an employee who is not married and/or does not have a registered domestic partner to designate annually a specific person for whom the employee may take leave to care.
Does the paid sick time under the California law run concurrently with the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the San Francisco paid sick leave ordinance?
Unfortunately, the correct answer is one that you would expect from a lawyer: It depends. In many situations, the leaves provided under the San Francisco paid sick leave ordinance, the FMLA, CFRA, and the California paid sick leave law can run concurrently. For example, if an employee took a day off for his or her own serious health condition, he or she could use San Francisco paid sick leave, FMLA/CFRA leave, and California paid sick leave all at the same time.
However, employees will not be able to do this in all situations because each respective leave is available depending on (i) the reason for which the employee takes leave and/or (ii) the person for whom the employee takes leave. For example, while California paid sick leave allows an employee to take leave for domestic violence reasons, the FMLA, CFRA, and the San Francisco ordinance do not. Similarly, while the San Francisco ordinance allows an employee to care for a designated person who is sick, the FMLA, CFRA and the state law do not.
Does the law exempt any employees from its coverage?
Yes. The bill exempts employees covered by collective bargaining agreements if those agreements meet certain requirements, including providing for paid leave and binding arbitration.
Does the law impose penalties against employers in violation of the paid sick leave requirements?
Employers that violate the law will face administrative fines. The law also authorizes the Labor Commissioner or the Attorney General to recover civil penalties, attorneys’ fees, costs, and interest against violating employers, as well as to reinstate employees.
If you have any other questions regarding California paid sick leave, please contact the authors.
Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters. These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance. Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board,...
Christopher Olmsted is a shareholder in the firm's San Diego office. Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters. Mr. Olmsted's employment law compliance and litigation experience includes: California FEHA and Title VII discrimination, harassment and retaliation claims; wrongful termination claims; wage and hour compliance and defense of claims and labor...
Hera S. Arsen, J.D., Ph.D. is Senior Marketing Counsel overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera...