California Mandates Paid Sick Leave
Governor Jerry Brown signed into law the “Healthy Workplaces, Healthy Families Act of 2014″ which requires California employers to provide paid sick days to all but a few categories of employees.
The Act takes effect on July 1, 2015 and provides that employees who work 30 or more days within a year will accrue paid sick days at the rate of one (1) hour for every 30 hours worked. Employees can accrue up to 48 hours (six days) of paid sick leave per year, but are only entitled to use 24 hours (3 days) in each year. The remaining hours can be carried over to the next year, but only 24 hours can be used in any year. However, if an employer grants the full 24 hours of leave at the beginning of each year, no accrual or carry over is required.
The Act’s coverage is very broad defining an employer as “any person employing another under any appointment or contract of hire, including the State, political subdivisions of the State and municipalities.” However, certain categories of employees are excluded including IHSS workers, flight deck and cabin crew employees of airlines and certain employees covered by a Collective Bargaining Agreement.
It is important to note that the new law does not require an employer to compensate the employee for accrued paid sick days upon termination, resignation, retirement or other separation from employment. In the event an employer rehires a previously separated employee within one (1) year of that separation, the accrued and unused sick leave will be reinstated to the employee.
It is also important to note that if an employer already has a sick leave policy that provides paid time off for the same purpose and under the same conditions of this new law, no further paid sick days are imposed by the law.
Sick leave under this new law can be taken after 90 days of employment. The sick leave can be taken for diagnosis, care or treatment of an existing health condition or preventative care for employee or employee’s family member. Further sick leave may be taken if the employee is a victim of domestic violence, stalking or sexual assault.
Employers subject to the law must take steps to comply, such as:
- Review your existing sick leave policy to insure it meets or exceeds the requirements of the “Healthy Workplaces, Healthy Families Act of 2014” in terms of accrual, use and compensation of employees.
- Notice requirements in the law require employers to provide individual written notice at the time of hiring of the accrual of sick leave, use of sick leave and the fact an employee may not be terminated for requesting sick leave and may file a complaint for retaliation in the event of such an action. [See Labor Code §2810.5, as amended.]
- Posting requirements in the law require a similar notice as on the individualized notice requirements above to be included on prominent and conspicuous workplace postings. [See Labor Code §226, as amended.]
- Record keeping requirements impose a three (3) year period for maintenance of records documenting the hours worked and paid sick days accrued.
- Set a minimum increment for use of sick leave not to exceed two (2) hours for the use of paid sick leave.
- Eliminate any policy that requires an employee to find his or her own replacement worker for days covered by paid sick leave under the Act.
Unanswered questions in this new law exist. There is no requirement that an employee must provide documentation concerning sick leave taken. Therefore, unless there is a requirement under other provisions of law (California Family Rights Act, Pregnancy Leave Act or Workers Compensation), no such medical documentation should be requested. Of course this could change depending on what regulations are issued by the Labor Commissioner concerning the implementation of the new law.
The law also broadly defines the term “family member” beyond the definition for California’s existing Kin Care law [California Labor Code §233] as well as the California Family Rights Act. Further, the law does not mention the California Labor Code §233 provision that only six (6) months of accrued and available sick leave entitlement can be used for a family member’s illness nor Labor Code §234 penalty provisions for violation of Labor Code §233. These issues will no doubt be addressed as time goes on, but for now employers must take a cautious approach to conforming to the new law given the penalties associated with non-compliance.
In this regard, the Labor Commissioner is authorized by the new statute to enforce the law, investigate alleged abuses or violations and order appropriate relief. Either the Labor Commissioner or the Attorney General can bring a civil action against persons violating the Act.
Employers should consult counsel or human resource professionals to insure that they are subject to the law and properly comply.