Starting July 1, 2015 most employees will be entitled to up to three days of paid sick leave each year. Here are the details.
WHO IS COVERED? Employees who work in California at least 30 days within one year from the commencement of employment are covered. All private and most public employers are subject to the law regardless of number of employees or locations. The only employees excepted are certain in-home health care workers, flight deck and cabin crew members covered by the Railway Labor Act, and certain workers who are subject to collective bargaining contracts that provide greater protections.
WHAT ARE EMPLOYEES ENTITLED TO? Employees may make a verbal or written request for sick time to deal with the diagnosis, treatment (including preventive care) of an existing health condition of the employee or family member. An employee who is the victim of domestic violence, sexual assault or stalking may also request time off to participate in matters such as medical attention, counseling, obtaining a court order and safety planning. Family member is broadly construed and includes:
- Child (regardless of age), including biological, adopted or foster; legal ward; or a child to whom the employee stands in loco parentis.
- Biological, adoptive or foster parent, step-parent, or legal guardian of an employee or employee’s spouse or registered domestic partner, or a person who stood in loco parentis to the employee when the employee was a minor child.
- Spouse
- Registered domestic partner
- Grandparent
- Grandchild
- Sibling
Note, this statute’s definition of “family member” is broader than that afforded under California’s Kin Care Law as well as the FMLA and CFRA, which means that employees may be entitled to leave that is not chargeable against their FMLA/CFRA banks.
ACCRUAL, USE AND CARRYOVER Employees must accrue sick leave at not less than one hour for every 30 hours worked (including overtime), subject to the limits as set forth in the law. Accruals may be capped at 48 hours (six workdays), and employers may limit the use of paid sick leave to 24 hours (three workdays) in each year of employment. Employers may also set a “reasonable minimum increment not to exceed two hours” for use of paid sick leave, but the law expressly authorizes the employee to “determine how much paid sick leave he or she needs to use.” There is an argument that can be made that this provision prevents the employer to some degree, from managing leaves to accommodate workplace needs. The law applies equally to exempt and non-exempt employees, with exempt employees presumed to have a 40 hour workweek for accrual purposes unless the employee’s normal workweek is less than 40 hours. Employees can use the leave beginning after the 90
th day of employment, after which time they may use it as it accrues. While the date on which actual accrual of paid sick time begins is measured from July 1, 2015, the time period for when an employee may use accrued paid sick time is measured by the actual date of employment. Specifically, an employee must be employed for at least 90 days by the employer before being able to use any accrued paid sick leave. For example, Employee A is hired on March 1, 2015 and will reach 90 days of employment on May 31, 2015. Under the law, Employee A begins accruing sick time after she has worked 30 days in California, with the 30 days being counted from July 1, 2015. Employee A will be able to use her paid sick time immediately upon accrual. In contrast, Employee B is hired on July 1, 2015. He reaches his 90th day of employment on September 29, 2015. Under the law, Employee B begins accruing paid sick leave after working 30 days in California, which is counted beginning on July 1, 2015. In this scenario, however, Employee B cannot use any paid sick leave until 90 days of employment, or September 29, 2015. At the employer’s option, they may elect to advance sick time. Unused sick leave will carry over to the subsequent year. Nonetheless, employers may advance the full allotment of sick time at the commencement of the year as opposed to using the accrual method and thus avoid the need to monitor accruals and carryover. The statute is silent on the definition of “year” as to whether it is a calendar year, year of employment or something else. Accrued but unused sick leave need not be paid out upon separation of employment, unless the sick time is part of a PTO program. If an employee is rehired within one year, all previously accrued and unused sick time must be reinstated and the individual may use the time without satisfying either the 30 or 90 day periods applicable to new employees. All aspects of the law may be subsumed into an existing PTO program that allows employees to use the sick time for all reasons including all defined family members as set forth in the new law.
NOTICE, POSTING, RECORDKEEPING AND ENFORCEMENT The statute places new notice, posting and recordkeeping requirements on employers including:
- Notice on wage statements: After 7-1-15 employers must provide employees with a written notice that sets forth the amount of paid sick leave available for use. This information must appear on either the employee’s itemized wage statement or on a separate document provided on the designated pay date with the employee’s payment of wages.
- Updated wage theft prevention notices: Employers must amend the Wage Theft Prevention Act notices provided to new hires to indicate that employees may accrue paid sick leave, have the right to request and use accrued paid sick leave, may not be terminated or retaliated against for using or asking to use paid sick leave and have the right to file a complaint for retaliation.
- Workplace posters: In a visible location, employers must display a poster specifying that employees are entitled to accrue, request and use paid sick days; the amount of paid sick days provided for by the new law; the terms of use for paid sick days; and that retaliation or discrimination against an employee who requests paid sick days, uses paid sick days, or both, is prohibited and that an employee who experiences prohibited conduct has a right to file a complaint with the California labor commissioner. The commissioner is charged by law with creating a suitable poster for the new statute.
- Recordkeeping: Employers must keep records that document the hours worked and paid sick days accrued and used by an employee for at least three years. The labor commissioner will have access to these records, and employers must make these records available to their employees.
The law authorizes the commissioner to enforce the law, investigate alleged violations and order relief. Either the commissioner or the California attorney general will be able to bring civil actions against violators. There are broad penalty and anti-discrimination provisions,
including a rebuttable presumption of unlawful retaliation when employees suffer adverse action within 30 days after undertaking an activity sanctioned by the new law.
We hope this information is valuable to you. Please do not hesitate to contact Holman HR with any questions you may have. 