Paid Sick Leave

California’s new Paid Sick Leave (“PSL”) law went into full effect on July 1, 2015.

In general, the law requires employers to provide employees with at least 24 hours, or three days, of paid sick leave per year.

Who Qualifies?

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 the PSL, with some limited exceptions (see below).

Even employees of a staffing agency are covered by the new PSL.

Qualification criteria is based on length of employment with the same employer.  Employees must:

• Work for the same employer, since on or after January 1, 2015, for at least 30 days within a year in California, and
• Be employed for a 90-day period before taking any sick leave.

This means that an employee is entitled to take paid sick leave beginning on the 90th day of their employment, which is similar to a probationary period.

Who is Exempt?

• Providers of publicly-funded In-Home Supportive Services (IHSS)
• 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.

How is Sick Leave Earned?

PSL requires employers to provide and allow employees to use at least 24 hours, or 3 days, of paid sick leave per year.   If the employer has an existing paid time off (“PTO”) policy that could be sufficient to satisfy the employer’s obligations under PSL.

Employers may provide PSL time “up front” or on an “accrual” basis:

• Up front policy: provides the full allotment of PSL required time up front to employees.

• Accrual policy: analogous to vacation, employers may provide PSL on an accrual basis.  However, the law requires that employees under a PSL accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (e.g., the 1:30 schedule).

Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment.

How is Sick Leave Used?

You, the employee, decide how much paid sick leave you want to use (for example, whether you want to take an entire day, or only part of a day).  Your employer can require you 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 up to you.

Under PSL, you can take paid time off for yourself or a family member, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes, if you are a victim of domestic violence, sexual assault or stalking.

• “Family members” include:
  • A child [whether] biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. (This definition of a child is applicable regardless of age or dependency status.)
  • 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.
  • A spouse, registered domestic partner, grandparent, grandchild, or sibling.

• “Preventive care” includes:
  • annual physicals or flu shots in addition to the “[d]iagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee’s family member,” and “[f]or an employee who is a victim of domestic violence, sexual assault, or stalking.”

Is Notice Required?

You should notify your employer in advance if the sick leave is planned, but if the need is unforeseeable, you only need to give notice as soon as practical.

PSL & Part-Time Employees

If you work part-time (i.e., less than 8 hours per day) and have earned 24 hours of sick leave, your employer cannot limit you to just three work days of paid leave.  That is because your work days are never 8 hours long.

Compensation Under PSL

The new law requires that your employer pay you for sick that you have taken no later than the payday for the next regular payroll period after the sick leave was taken.
For example, if you did not clock in for a shift and therefore were not paid for it but utilized your paid sick leave, your employer would have to pay you not 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.

Employers Cannot Restrict Your Rights or Retaliate Against You

On January 1, 2016, California also revised Labor Code § 233 (“Kin Care” law) to remove the provision which expressly allowed employers to place conditions and restrictions on the use of employee sick leave (e.g., requiring doctor’s notes).

The revisions also contain provisions which prohibit retaliation or discrimination against an employee “for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventative care of a family member, or for any other reason stated in [the PSL].”

You Have More Rights Than You Think

The new PSL is not the only protection available to you if you need to take time off work.  If you have or need to take time off for medical reasons, or any other reason, make sure that you get informed about your rights and that you get paid the money you deserve.

The best course of action is getting informed!  Talk to an employment lawyer at Vision Legal, Inc. who knows paid sick leave laws and can guide you through the PSL and advise you on the best way to look out for yourself, your health, and your legal rights.

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