California Sick Law Law Explained

The laws regarding sick leave law in California can be confusing and are complex. However the following is a summary of the law as of June 15, 2016. Please note that local city governments can establish their own ordinances regarding sick leave.  These ordinances will control as long as they offer at least the minimum amount of sick leave offered under state law.  The city counsel for the City of Los Angeles has recently passed such an ordinance which will probably take effect in July 2016:

The state’s sick leave law went into effect on January 1, 2015. However, the right to begin accruing and taking sick leave under this law did not go into effect until July 1, 2015.

To qualify for sick leave, an employee must:
• Work for the same employer, on or after January 1, 2015, for at least 30 days
within a year in California, and
• Satisfy a 90-day employment period (similar to a probationary period) before taking any sick leave.

If an employee works less than 30 calendar days within a year for the same employer in California, then you are not entitled to paid sick leave under this law.

The 90 calendar day period works like a probationary period. If an employee works less than 90 days for their employer, the employee are not entitled to take paid sick leave.

A qualifying employee began to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. An employee is entitled to use (take) paid sick leave beginning on the 90th day of employment.

All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, and temporary employees, are covered by this new law with some specific exceptions. Employees exempt from the paid sick leave law include:

• Providers of publicly-funded In-Home Supportive Services (IHSS)
• Employees covered by collective bargaining agreements with specified
provisions
• Individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of the new law
• Retired annuitants working for governmental entities.

Employees of a staffing agency are covered by the law. Therefore, whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees.

The law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year.  Employers adopting new policies to comply with the law may choose whether to have an “accrual” policy or a “no accrual/up front” policy.  An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule).  Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment.

Although employees may accrue more than three days of paid sick leave under the one hour for every 30 hours worked (or under an alternative accrual standard) under an accrual method, the law allows employers to limit an employee’s use of paid sick leave to 24 hours or three days during a year. The law also allows an employer to limit an employee’s total accrued paid sick leave to no more than 48 hours or six days.

A no accrual/up front policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment. The employer must provide at least 24 hours or three days of paid sick leave per year and the full amount of this leave must be available for the employee’s use from the beginning of each year of employment, calendar year, or 12-month period. Note: the employer determines how the year will be calculated, whether it tracks a typical
calendar year, fiscal year, or other 12-month period).  Lastly, the law allows certain types of existing sick leave policies to be “grandfathered,” if the policy was in existence prior to January 1, 2015. These policies are deemed to comply with the new law if:

• The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and
• The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.
Any modification to a grandfathered sick leave or paid time off policy will nullify its qualification as a grandfathered policy and the employer will be required to comply with the requirements under the new law.

Because paid sick leave accrued beginning on July 1, 2015, or the first day of employment if hired after July 1, 2015, the 12 month period will vary by hire date for those employees hired after July 1, 2015. Therefore, the measurement will mostly be tracked by the employee’s anniversary date.

An employer may elect to advance sick leave to an employee before it is
accrued, but there is no requirement for an employer to do so under this law.

If a seasonal employee works only 60 days one year but returns to the same employer within one year and work another 60 days the paid sick leave law requires that your accrued and unused sick leave be restored to you if you return to the same employer within 12 months from the
previous separation.  However, an employer is not required to restore previously accrued and unused paid time off (PTO), if the sick leave was provided pursuant to a PTO policy covering
sick leave which was paid or cashed out to the employee at the end of the previous employment with that employer.

If an employee returns to work for the same employer after more than one year The paid sick leave law does not require that your accrued sick leave be restored to the employee.

An employer may provide sick leave through its own existing sick leave or paid time off plan, or establish different plans for different categories of workers. Each plan must satisfy the accrual, carryover, and use requirements of the new law. In general terms, the minimum requirements under the new law are that an employer must provide at least 24 hours or three days of paid sick leave per year. A paid time off (PTO) plan that employees may use for the same purposes of paid sick leave, and that complies with all applicable minimum requirements of the new law, may continue to be used.  In general terms, the law provides that, employers who adopt an accrual plan for paid sick leave, employees must accrue at least 1 hour of paid sick leave for each 30 hours of work. An employer may use a different accrual method, as long as the accrual is on a regular basis and results in the employee having no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period.

The law also has a “grandfather” clause, which allows employers with paid sick leave policies or paid time off policies that were in existence prior to January 1, 2015, to maintain those policies and be deemed in compliance as long as they meet the following requirements:

• The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and
• The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.
Sick leave or annual leave provided to governmental employees pursuant to either certain Government Code provisions or a memorandum of understanding meet the accrual requirements.

The law states that an employer is not required to have an accrual or carryover policy for paid sick leave if the “full amount of leave” is provided to employees at the beginning of each year of employment, calendar year or 12-month period. The
“full amount of leave” that an employer is required to provide under this provision is at least 24 hours or three days of paid sick leave.  For initial hires, however, the employee must still meet the 90-day employment requirement prior to taking any paid sick leave.

Under the accrual method, an employee can carry over unused sick leave from one year to the next. However, an employer may limit or cap the overall amount of sick leave an employee may accrue to 6 days or 48 hours.

If an employer provides paid time off (PTO) which an employee can use for vacation or illness an employer will not have to provide additional sick leave as long as the employer provides the minimum of at least 24 hours or three days per year of paid leave that can be used for health care and that meets other requirements in the law.

If an employer offers unlimited time off the notice, itemized pay stub or separate written statement provided with the payment of wages meets the necessary requirements by indicating the paid sick leave is “unlimited”.

An employee can take paid sick leave for himself/herself or a family member, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes if you are a victim of domestic violence, sexual assault or stalking.  Family members include the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling. Preventive care would include annual physicals or flu shots.

The employee may decide how much paid sick leave he or she wants to use (for example, whether the employee wants to take an entire day, or only part of a day). The employer can require you to take a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of how much time is needed is left to the employee.

The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.

The law requires that an employer provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken. This does not prevent an employer from making the adjustment in the pay for the same payroll period in which the leave was taken, but it permits an employer to delay the adjustment until the next payroll. For example, if an employee did not clock in for a shift and therefore was not paid for it but utilized his/her paid sick leave, the employer would have to pay the employee not later than the following pay period and account for it in the wage stub or separate itemized wage statement for that following regular pay period.  For nonexempt employees, the employee will be paid his/her regular or normal non-overtime hourly rate for the amount of time that the employee took as paid sick leave.

Employers must show how many days of sick leave an employee has available on the employee's pay stub, or on a document issued the same day as your paycheck. If an employer provides unlimited paid sick leave or unlimited paid time off, the employer may indicate "unlimited" on your pay stub or other document provided to you the same day as your wages.  Employers also must keep records showing how many paid sick day you earned and used for three years. This information may be stored on documents available to employees electronically.

The law states that an employer is not obligated to inquire into, or record, the purposes for which an employee uses paid sick leave or paid time off.

If employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee.  Please note:  The City of Los Angeles has drafted an ordinance going into effect in July 2016 that doubles the amount of sick leave that the employer must provide to its employees.  This ordinance also enlarges who is covered under compared to state law.

The paid sick leave law allows employees to decide how much paid leave time to take, subject to their employer’s ability to set a two-hour minimum.  For example, if an employee has accrued ten hours, he or she can request to be paid for ten hours. If the employee decides to take less time than that in paid sick leave, then he or she will be paid for the number of hours that they chose to take. Be advised, employees must take a minimum of two hours when they choose to take sick leave if the employer sets a two-hour minimum.  If an employee on an alternative work schedule is sick for three days and has accrued only 24 hours of paid sick leave, the employer will pay for the 24 hours accrued. However, if the employee has accrued 30 hours of paid sick leave they must be paid for the full 30 hours, or three days, of work.

An employee does not have the right to cash out his/her unused sick days unless their employer's policy provides for a payout.

Beginning January 1, 2015, employers were and are required to display a poster in a conspicuous place at the workplace.  The workplace posting must contain the following information:
• That an employee is entitled to accrue, request, and use paid sick days;
• The amount of sick days provided for and the terms of use of paid sick days;
• That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited; and
• That an employee has the right under this law to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against an employee.  The Labor Commissioner has a poster on its website that employers can use to comply with the law.

After January 1, 2015, employers were and are required to provide most employees with an individualized Notice to Employee (required under Labor Code section 2810.5) that includes paid sick leave information. A Notice to Employee form revised to reflect the new sick leave law by the Labor Commissioner’s Office must be used for employees hired after January 1, 2015. For employees hired prior to January 1, 2015, the employer is required to provide a revised Notice to Employee or otherwise inform each employee of the information regarding paid sick leave, using any of the alternative methods specified in Labor Code section 2810.5(b).  The Notice to Employee provisions of Labor Code section 2810.5 do not apply to exempt employees, most government employees, or to employees covered by a valid collective bargaining agreement that meets certain specifications.

To avoid misinformation or misunderstanding regarding an employer’s paid time off or paid sick leave policy, employers are encouraged to ensure that employees are made fully aware of the terms and conditions of their policy. Although the notice requirements of Labor Code section 2810.5 do not apply to employees who are exempt from the payment of overtime, employees who are exempt from the payment of overtime are covered by this new paid sick leave law.

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