New Mandatory Leave Requirements for California Employers
By John L. Ross • Oct 1, 2014
California has recently become the second state in the country (after Connecticut) to impose a state-mandated paid sick leave requirement on employers. With passage of the so-called Healthy Workplaces, Healthy Families Act of 2014, beginning July 1, 2015, California employers-regardless of size-will be required to provide paid sick leave to their employees. Employees, whether exempt or non-exempt, who are employed in California for 30 days or more will be entitled to accrue paid sick leave at the employee's regular rate of pay of not less than one hour per every thirty (30) hours worked, commencing on the first day of employment or July 1, 2015, whichever is later.
Exempt employees will be deemed to work forty (40) hours per week, unless the employee normally works a workweek of less than forty (40) hours. An employee will be entitled to use accrued paid sick days beginning on the 90th day of employment, after which the employee may use paid sick days as they are accrued. The Act applies to all "employers" regardless of the number of employees and defines the term "employer," as "any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities."
An Employee Is Entitled To Use Sick Days For the Following Purposes:
(1) "Diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee's family member." The term "family member" is defined as:
- "A child, which . . . means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis" and that definition applies "regardless of age or dependency status," i.e., adult children.
- "A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child."
- Registered domestic partner
(2) "For an employee who is a victim of domestic violence, sexual assault, or stalking" [to take "time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief" or to obtain various services available to victims of domestic violence or sexual assault.
The Act applies equally to exempt and non-exempt employees, except for the following four exceptions: (1) employees covered by a valid collective bargaining agreement which expressly provides for the wages, hours, and working conditions and that also expressly provides for paid sick days and other requirements; (2) persons employed in the construction industry covered by a valid collective bargaining agreement which satisfies certain requirements; (3) a provider of in-home support services under specified parts of the Welfare and Institutions Code; and (4) persons employed by an airline as a flight deck or cabin crew member subject to certain provisions of the federal Railway Labor Act.
Employers With Existing Paid Leave/Time Off Policies:
"An employer is not required to provide additional paid sick days pursuant to [the Act] if the employer has a paid leave policy or paid time off policy, the employer makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in [the Act], and the policy . . . : (1) Satisfies the accrual, carry over, and use requirements of [the Act]," or "(2) Provides no less than 24 hours or three days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year or 12-month basis." However, an employer with an existing paid leave or paid time off policy, or which adopts a compliant policy after July 1, 2015, is still required to comply with the notice, posting, reporting, and recordkeeping requirements of the Act discussed below.
Local Sick Leave Ordinances:
The Act does not preempt local ordinances which provide for greater accrual or use of sick leave by employees. Thus, employers in San Francisco and San Diego will be required to provide sick leave that complies with both state and local laws.
Notice, Posting, Reporting, and Record Keeping Requirements
Notice Requirements For New Hires:
The law amends the requirements for the Labor Code Section 2810.5 notice to be provided to newly-hired non-exempt employees at the time of hiring. Employers must add the following additional information to the statement: "[t]hat the employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and has the right to file a complaint against an employer who retaliates."
An employer will be required to display in each workplace of the employer a poster stating:
(1) An employee is entitled to accrue, request, and use paid sick days;
(2) The amount of sick days provided for by [the Act];
(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 [the Act] to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee."
The Act directs the Labor Commissioner to create a poster with the required information and to make it available to employers.
Employers will be required to provide written notice to each employee "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 [i.e., check stub] or in a separate writing provided on the designated pay date with the employee's payment of wages."
Record Keeping Requirements:
Employers will be required to keep for at least three years paid sick leave records documenting the hours worked and paid sick days accrued and used by an employee. Furthermore, an employer will be required to make such records available for inspection by the Labor Commissioner and will be required to make such records available for inspection and copying by employees as employers are required to do as to other employment records of an employee. Notably, "if an employer does not maintain adequate records pursuant to [the Act], it shall be presumed that the employee is entitled to the maximum number of hours accruable under [the Act], unless the employer can show otherwise by clear and convincing evidence."
Accrual and Termination
Accrual and Carry-Over of Paid Sick Days:
"Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee's use of paid sick days to 24 hours or three days in each year of employment." Further, "[an] employer has no obligation to allow an employee's total accrual of paid sick leave to exceed 48 hours or six days, provided that an employee's rights to accrue and use paid sick leave . . . are not otherwise limited."
Pay Out For Accrued Paid Sick Days At Termination:
Employers are not required to pay employees for unused sick days accrued under the Act upon employee's termination, resignation, retirement, or other separation from employment. However, if an employee is rehired within one year from the date of termination, "previously accrued an unused paid sick days shall be reinstated," and "[t]he employee shall be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring."