Paid Sick Leave

                                                                                                 Overview

The Healthy Workplace Healthy Family Act of 2014 provides that an employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days.

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An employee shall accrue paid sick days at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this law, whichever is later, subject to the use and accrual limitations set forth by law.

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An employee who is exempt from overtime requirements as an administrative, executive, or professional employee under the law is deemed to work 40 hours per workweek for the purposes of this law, unless the employee’s normal workweek is less than 40 hours, in which case the employee shall accrue paid sick days based upon that normal workweek.

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An employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has 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.

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An employer may satisfy the accrual requirements of this section by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of the employee’s 120th calendar day of employment.

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An employee shall be entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.

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Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of accrued paid sick days to 24 hours or three days in each year of employment, calendar year, or 12-month period. This section shall be satisfied and no accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. The term “full amount of leave” means three days or 24 hours.

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An employer is not required to provide additional paid sick days pursuant to this law if the employer has a paid leave policy or paid time off policy, the employer makes available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified by this law, and the policy satisfies one of the following:

(1) Satisfies the accrual, carryover, and use requirements of this law.

(2) Provided paid sick leave or paid time off to a class of employees before January 1, 2015, pursuant to a sick leave policy or paid time off policy that used an accrual method different than providing one hour per 30 hours worked, provided that the accrual is on a regular basis so that an employee, including an employee hired into that class after January 1, 2015, has no less than one day or eight hours of accrued sick leave or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment. If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer shall comply with any accrual method set forth in subdivision (b) or provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period. This law does not prohibit the employer from increasing the accrual amount or rate for a class of employees covered by this law.

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Except as specified in paragraph (2), an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.

(2) If an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days shall be reinstated.

The employee shall be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring, subject to the use and accrual limitations set forth by this law.

An employer is not required to reinstate accrued paid time off to an employee that was paid out at the time of termination, resignation, or separation of employment.

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An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.

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An employer shall provide an employee with written notice that sets forth 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.

If an employer provides unlimited paid sick leave or unlimited paid time off to an employee, the employer may satisfy this law by indicating on the notice or the employee’s itemized wage statement “unlimited.”

An employer has no obligation under this law to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave are not limited other than as allowed under this law.

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An employee may determine how much paid sick leave they need to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.

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For the purposes of this law, an employer shall calculate paid sick leave using any of the following calculations:

(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.

(2) Paid sick time for nonexempt employees shall be 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 of the prior 90 days of employment.

(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

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If the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.

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An employer shall 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.

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                                                                                                 Common FAQ:

Q: How do California employees qualify for paid sick leave?
A: To qualify for sick leave, California employees 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.

Q: Are California employees entitled to paid sick leave if they work less than 30 days in California within a year?
A: California employees are not entitled to paid sick leave if they work less than 30 calendar days within a year for the same employer in California.

Q: Are California employees entitled to paid sick leave if they work more than 30 days in California within a year but less than 90 days?
A: The 90 calendar day period works like a probationary period, so if the employees work less than 90 days for the Employer, they are not entitled to take paid sick leave.

Q: When are California employees entitled to take paid sick leave?
A: Qualifying California employees begin to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. As such, employees are entitled to use (take) paid sick leave beginning on the 90th day of employment.

Q: Does paid sick leave apply to all employees who work in California?
A: Generally, yes. 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 law with some specific exceptions. Employees exempt from the paid sick leave law include:

• 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

Q: Are California employees employed by a staffing agency entitled to paid sick leave?
A: Yes. California employees of a staffing agency are covered by the law, so employers or joint employers are required to provide paid sick leave to qualifying employees.

Q: For what purposes can California employees use paid sick leave?
A: California employees may take paid sick leave for themselves or family members, for preventive care or diagnosis, care or treatment of existing health conditions, or if they are a victim of domestic violence, sexual assault or stalking. “Preventive care” includes annual physicals or flu shots. “Family members” include spouses, parents, children, registered domestic partners, grandparents, grandchildren, and siblings.

Employees may decide how much paid sick leave they want to use (an entire day, or only part of a day). Employers can require employees 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 employees.

Q: Must California employees notify the Employer before taking sick leave?
A: Generally, yes. California employees must notify their employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, employees need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.

Q: When are California Employers required to pay employees for sick leave?
A: California Employers must pay employees for the sick leave no later than the payday for the next regular payroll period after the sick leave was taken. Employers may make the adjustment in the pay for the same payroll period in which the leave was taken, and it permits employers to delay the adjustment until the next payroll. For example, if an employee did not clock in for a shift and was then not paid for it but utilized paid sick leave, the employer would have to pay the employee no 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.

Q: How much shall California employers pay employees for the sick leave?
A: It depends on whether employees are “exempt” or “non-exempt” employees. Non-exempt California employees must be paid their regular or normal non-overtime hourly rate for the amount of time the employees took as paid sick leave.  For example, if the employee took two hours of paid sick leave to attend a doctor’s appointment, the employee will be paid for those two hours at the same non-overtime hourly rate they would have earned if they had been working.

To determine the rate of pay, Employers may either:

• Calculate employees’ regular, non-overtime rate of pay for the workweek in which they used paid sick leave, whether or not the employee actually worked overtime in that workweek (in general terms, this is usually done by dividing the employee’s total non- overtime compensation by the total non-overtime hours worked), or

• Divide the employees’ total compensation for the previous 90 days (excluding overtime premium pay) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, paid sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time (for example, vacation pay, paid-time off).

Q: Must California Employers show employees their accrued sick leave?
A: Yes. California employers must show how many days of sick leave employees have available on their pay stub, or on a document issued the same day as their paycheck. Employers that provide unlimited paid sick leave or unlimited paid time off, may indicate “unlimited” on employees’ pay stub or other document provided the same day as their wages.

Employers also must keep records showing how many paid sick days employees earned and used for three years. This information may be stored on documents available to employees electronically.

Q: Must California Employers document the reason employees use paid sick leave?
A: No. California Employers are not obligated to inquire into, or record, the purposes for which employees use paid sick leave or paid time off.

If you have any questions about paid sick leave time, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.