Written by Galen Shimoda and Jennet Zapata
Employees often have to take sick days without pay, which discourages employees from taking days off even if they or a close family member are sick. There was no legal requirement in California that an employer provide its employees with paid sick time. While larger employers often pay sick time, smaller employers, who have one (1) or two (2) employees, do not typically pay sick leave. A new law called the Healthy Workplaces, Healthy Families Act of 2014, which takes effect on July 1, 2015, provides employees with three (3) paid sick days to care for themselves or for a family member, and also provides three (3) paid sick days to victims of domestic violence, sexual assault, or stalking as defined under the law.
This law also prohibits an employer from retaliating or discriminating against an employee who requests paid sick days. This article highlights some of the main requirements of this new law but it is not inclusive of all. If you are an employer, you should consult with an attorney to make sure that your existing policies comply with these new requirements or to establish the procedure to track earned sick time and thus comply with posting and record keeping requirements of this
Who is eligible?
An employee, exempt or non-exempt, who works in California for thirty (30) or more days within a year from the start of employment, is eligible for paid sick leave.
What type of employers and employees does this new law apply to?
This law applies to all employers, including small employers. However, some employees are exempt; exempt employees include those covered by a valid collective bargaining agreement, including construction employees, providers of in-home supportive services, and employees of an air carrier as a flight deck or cabin crew member.
For what purpose can paid sick leave be taken and how does it compare with other laws, such as the Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA)?
Sick leave can be taken for preventive care for an employee or an employee's family member or for the diagnosis, care, or treatment of an existing health condition. Sick leave can also be taken for an employee who is a victim of domestic violence, sexual assault, or stalking, as defined under the law.
A family member is defined as either as a child, a parent, a spouse, a registered domestic partner, a grandparent, a grandchild, or a sibling. This definition of a family member is more expansive than that found in the Family Medical Leave Act or the California counterpart, known as the California Family Rights Act, which generally does not provide leave to care for a grandparent, a grandchild or a sibling. Also, the FMLA or CFRA permit leave only for a serious health condition, while this new law permits leave for preventive care or a health condition.
While an employer is not required to provide additional paid sick days pursuant to this new law, an employer with a paid leave policy or paid time off policy must make sure that it satisfies the accrual, carry over, and use requirements of this new law. Also, an employer can adopt a policy that is more generous than that required by this new law.
How much paid sick leave can an employee earn?
The sick leave time will be earned at a rate of one hour for every thirty (30) hours worked. Employees who regularly work forty (40) hours per week will accumulate over five (5) hours of sick leave in a month (or a little over one (1) hour per week).
When does sick leave begin to accrue?
Accrual of paid sick leave does not begin until July 1, 2015, or the date of hire, whichever is later.
When can it be used and how much can be used?
An employee will be entitled to use accrued sick days beginning on the 90th day of employment, based on the time earned or accrued to date. An employer may limit an employee's use of paid sick days to twenty-four (24) hours or three (3) days in each year of employment. Employers have discretion to lend employees paid sick days before they have accrued. Employers however cannot condition use of paid sick leave on employees by requiring them to find a replacement to cover the time they are on paid sick leave.
Accrued paid sick days will carry over to the following year of employment. An employer has no obligation to allow an employee's total accrual of paid sick leave to exceed forty-eight (48) hours or six (6) days.
An employee may determine how much paid sick leave he or she needs to use, but an employer may set a reasonable minimum increment, not to exceed two (2) hours.
When should an employee provide notice to an employer?
If an employee knows in advance of the need for paid sick leave, the employee must provide reasonable advance notice to his or her employer. Otherwise, the employee shall provide notice of the need for the leave as soon as possible.
What must be included in an employer's notice to employees?
Employers must display a poster in a conspicuous place containing the following information:
- (1) An employee is entitled to accrue, request, and use paid sick days;
- (2) The amount of sick days provided for by this law;
- (4) 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 article to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee.
An employer who willfully violates the posting requirements is subject to a civil penalty of not more than one hundred dollars ($100) per each offense.
An employer must also provide an employee with written notice of the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee's itemized wage statement or in a separate writing provided on the designated pay date with the employee's payment of wages. An employer is subject to penalties if this requirement is not followed.
What are the recordkeeping requirements?
An employer must keep for at least three (3) years records documenting the hours worked and paid sick days accrued and used by an employee, and shall allow the Labor Commissioner to access these records. An employer shall make these records available to an employee in the same manner as it is to make available a personnel file. If an employer does not maintain adequate records pursuant to this section, it shall be presumed that the employee is entitled to the maximum number of hours accruable, unless the employer can show otherwise by clear and convincing evidence.
Can an employee receive payment of sick leave upon termination?
An employer is not required to pay an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. But if an employee who separates from an employer and is rehired by the employer within one (1) year from the date of separation, the employer has to reinstate the amount of accrued, unused paid sick time.
Where to file a complaint?
Employees may file a claim with the Labor Commissioner to enforce these requirements, including the investigation, mitigation, and relief of violations of these requirements. The Labor Commissioner may impose administrative fines for violations and the Commissioner or the Attorney General may file a civil action to recover administrative penalties and liquidated damages not to exceed an aggregate of $4,000, as well as attorney's fees, costs, and interest.
Can employers retaliate or discriminate?
An employer cannot deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.
There will be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within thirty (30) days of any of the following:
- (A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this law;
- (B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this law;
- (C) Opposition by the employee to a policy, practice, or act that is prohibited by this law.
As mentioned above, an employee may use sick leave to care for a family member, including a spouse, child, and parent. An employer cannot deny an employee the right to use sick leave, terminate, threaten to terminate, demote, suspend, or discriminate against an employee for using sick leave for this specific purpose. If an employer does so, the employee can also file a complaint with the Labor Commission or even bring an action in civil court for damages and attorney's fees.
If you have any questions, please contact the Shimoda Law Corp. to speak with an attorney.