Working or Calendar Days? Five Day Notice Requirements
An interesting question was asked today about the reporting requirements of an insurer and whether the 5 day requirement mandated by Labor Code section 6409.1(a) and 8 California Code of Regulations section 14001(d)-(e) is a “working” or “calendar” day requirement.
If one looks at the legal authority cited in the Regulation, it specifically references Labor Code section 5401(a); Labor Code section 5401(a) specifically refers to “one working day” as the legal standard for calculating an employer’s responsibilities under that statute. Unfortunately “working day” does not appear in Labor Code section 6409.1(a) or 8 CCR 14001(d)-(e) thus one is essentially left with vague statutory and regulatory language.
In such instances I look to case law. There is no case that I find clarifying whether the 5 days referenced in this statutory and regulatory authority are “working” or “calendar.” Thus in my opinion we are left with analogy to the existing statutes which do reference a) an employer’s obligations and b) a “day” requirement. The most closely analogous by reference in 8 CCR 14001(d)-(e) notes would be Labor Code section 5401(a) which does reference “working” days. You should note an expired regulation regarding electronic reporting requirements references “5 business days” but since that regulation has sunsetted I do not consider it binding or persuasive authority.
I can fairly write that no case or statute clarifies this in black and white of which I am aware. Thus we look to persuasive relevant authority to help.
In my opinion the law does not provide a definitive answer to this question, but it appears by analogy that 5 working days is a defensible position.