California’s Sick Leave Law — An Administrative Pain for Small Employers

California Healthy Workplace Statute Accords Minimum Sick Leave Rights

The Summary of the Healthy Workplace, Healthy Family Act of 2014 [AB 1522]

An employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the beginning of employment, is entitled to paid sick leave. Employees, including part-time and temporary employees, will earn at least one hour of paid leave for every 30 hours worked. Accrual begins on the first day of employment or July 1, 2015, whichever is later.

Exceptions: Employees covered by qualifying collective bargaining agreements, In-Home Supportive Services providers, and certain employees of air carriers are not covered by this law.

An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or three days. Accrued paid sick leave may be carried over to the next year, but it may be capped at 48 hours or six days.

Sick Leave Law Implications for California Employers.

The new law will mostly affect policy changes for small employers not previously providing sick leave. It will require these smaller employers to set in place procedures and safeguards to assure compliance.  Larger usually employers already have sick leave policies and practices in place that meet the minimum requirements of the Healthy Workplaces, Healthy Families Act of 2014.

The sick leave available includes time off to care for a sick family member, including parents, stepparents, stepchildren, biological children, legal ward, registered domestic partner, a sibling, and of course a spouse.  A “child” is defined as a legal child or ward without regard to age or dependency status.

California Sick Leave Law is Complex, and Allows the Employer to Set Limits on Accrual and Use.

Regarding limiting the use of sick leave, the employer may limit the employee’s use of accrued sick leave in a specified 12-month period to 24 hours or 3 days.”  Likewise, the employer must allow the unused sick leave to carry over and to continue to accrue to a minimum of “48 hours or 6 days.”  What is a “day” as used in the statute?

Sick Day, Day, and Work Day Ambiguities.

Note that the term “workday” is not used in the statute, while “paid sick day” is used.  A sick day is a day not worked because sick.  If an employee’s sick day consists of a 4-hour work schedule, then a sick day would be 4 hours, and 3 such days would be 12 hours.  The statute states: “However, an employer may limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.”  The language implies “either 24 hours or three days.”  [Labor Code Sec. 246(d)].  In the example given, 3 sick days for the 4 hour per day scheduled employee would end at 12 hours of used accrued sick leave.  However, the balance of accrued leave would carry over to the next 12-month period.  I caution that this is my own logical interpretation of the statute, but the Department’s regulations may reach a different conclusion.

The employer may (but the statute does not automatically) limit the accrual rate (cap the accrual) to 48 hours or 6 days. This “48 or 6” reference again suggests that the accrual may be set at six days based on a particular employee’s scheduled hours that day – suggesting that in some instances the cap will be less than 48 hours.

The Employer Must Keep Sick Leave Records and Allow Employees Access.

The employer must keep records documenting the hours worked and the paid sick days accrued and used.  The employee will have access to these records as part of his or her personnel file.  The employer must notify the employee of the sick leave use status in one of two ways:  Either the employer may state “the amount of sick leave available in the employee’s pay stub, “or in a separate writing provided on the designated pay date with the employee’s payment of wages.” If the latter option is elected, the statement must be delivered with the employee’s regular paycheck.  [Labor C. Sec. 246(h)].

Section 247.5 requires the employer to keep at least 3 years of records documenting the hours worked and the paid sick days accrued and used by an employee.

An employee may set what increment of hours he or she wishes to use for sick leave, but the employer may require that the employee use no less than 2 hours as a “reasonable minimum increment.” [Labor C. Sec. 246(j)].

Sick Leave May be Used for A Range of Types of Care

Section 246.5 provides some liberally broad definitions of sick leave use, and states “upon the oral or written request of an employee” the employer shall provide the paid sick leave for “preventive care,” or for use by persons who are victims of “domestic violence, sexual assault, or stalking.”  This section also prohibits requiring an employee to find his own replacement on the work schedule, and prohibits discrimination and retaliation because using the sick leave rights of the Act.

Sick Leave Law Enforcement.

Section 248.5 is the enforcement statute for the Healthy Workplaces, Healthy Families Act of 2014.  The enforcement resides exclusively with the Department of Industrial Relations or the Attorney General.  However, of interest to employees and their attorneys, Labor Code Section 248.5(e) states by obtuse reference the Private Attorney General Act [PAGA] allowing private attorneys to sue on behalf of the state of California, and to split the gain with the State and the affected employees, and to recover “reasonable” attorney’s fees and costs.  Section 248.5(g) is explicit that the remedies are “cumulative,” implying that PAGA is an available “cumulative” remedy.

The administrative penalties are generally $50.00 per employee per day for each violation, up to a maximum of $4,000.00 liquidated damages.  Section 248.5(g) states a rather vague limit on any “person or entity enforcing this article on behalf of the public as provided for under applicable state law . . .” – an apparent reference to “PAGA” enforcement.  The remedies that may be collected “on behalf of the public” are limited to equitable (injunctive) orders and “restitutionary relief.”  The statute also allows recovery of reasonable attorney’s fees and costs.

Resources for More Information on Sick Leave Rights and Duties.

For a “question and answer” introduction to the law go to California Department of Industrial Relations, DLSE.

To read the statutes themselves, as enacted, go to Legislative Information.