Reminder: California Paid Sick Leave Update Going Into Effect July 1
On July 1, 2015, California has joined a growing number of jurisdictions mandating employers to provide paid sick leave to their employees, including part-time and temporary workers. Below is a summary of the California law’s key points:
Accrual of Sick Leave
Employees will accrue paid sick days at the rate of 1 hour per every 30 hours worked, beginning at the commencement of employment or July 1, 2015 (whichever is later).
An employee who is exempt from overtime requirements as an administrative, executive, or professional employee under a wage order of the Industrial Welfare Commission is deemed to work 40 hours per workweek. However, if the employee’s normal workweek is less than 40 hours, the employee will accrue paid sick days based upon that normal workweek.
An employer has no obligation 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 under the law are not otherwise limited).
An employer is generally not required to compensate an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
Accrued paid sick days will 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 3 days in each year of employment. These requirements are satisfied and no accrual or carry over is required if the full amount of leave is received at the beginning of each year, in accordance with other provisions of the law.
Employer Paid Time Off (PTO) Plans
The law establishes a minimum requirement, but an employer can provide sick leave through its own plan or establish different plans for different categories of workers. However, each plan must satisfy the accrual, carryover, and use requirements of the law or put the full amount of leave into the employee's leave bank at the beginning of each year in accordance with the employer's paid time off (PTO) policy.
If an employer provides a policy which exceeds the minimum requirements, including providing a specific cap, the policy must be clear as to the additional terms that apply to their employees.
Use of Sick Leave
Upon the oral or written request of an employee, an employer must provide paid sick days for the following purposes:
Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member; or
For an employee who is a victim of domestic violence, sexual assault, or stalking (for purposes described under state law).
An employee is 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.
Note: An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.
An employee may determine how much paid sick leave he or she needs to use, provided that an employer may set a reasonable minimum increment—not to exceed 2 hours—for the use of paid sick leave.
Note: The law does not limit or affect any laws guaranteeing the privacy of health information, or information related to domestic violence or sexual assault, regarding an employee or employee’s family member. That information must be treated as confidential and may not be disclosed to any person (except to the affected employee, or as required by law).
Employer and Employee Requirements
If the need for paid sick leave is foreseeable, the employee must provide reasonable advance notification. If the need for sick leave is unforeseeable, the employee must provide notice as soon as practicable.
An employer must provide payment for sick leave by the payday for the next regular payroll period after the sick leave was taken.
The rate of pay will be the employee’s hourly wage.
Note: If the employee—in the 90 days of employment before taking accrued sick leave—had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay is 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.
An employer may not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.
Be sure to update your records in the following areas:
Itemized wage statement. An employer must provide an employee with written notice that sets forth the amount of paid sick leave available (or paid time off 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.
Time of hire. The law amends the Wage Theft Protection Act, which requires that employers provide to each new employee notice of specified information at the time of hire. Under the new law, such notice must also state that an 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." The revised notice is available by clicking here.
Note: According to the Division of Labor Standards Enforcement's FAQs, employees hired after January 1, 2015 must be provided with a revised Notice to Employee (required under Labor Code section 2810.5) that includes paid sick leave information. Employees hired before January 1, 2015 must be provided with notice of changes to terms and conditions of employment that relate to paid sick leave within 7 days of the actual change. (This makes July 8, 2015 the final date (July 1, 2015 operative accrual date + 7 days) for providing notice of changes relating to paid sick leave to an employee hired before January 1, 2015.)
Employee Handbook. Update employee handbook to reflect the new paid sick time leave law and distribute the change in the handbook to all employees.
Records. An employer must keep for at least 3 years records documenting the hours worked and paid sick days accrued and used by an employee.
Stay up to date on record keeping and get our employee record keeping guide that will keep you on track.