On September 10, 2014, California Governor Jerry Brown signed into law the Healthy Workplaces, Healthy Families Act of 2014 (A.B. 1522). The law requires California employers to provide employees at least three paid sick days (24 hours) per year. With the signing, California joins Connecticut as one of only two states that require employers to provide paid sick leave. The law goes into effect on July 1, 2015.
Who is covered by the law?
California’s paid sick leave law generally applies to all employers and employees; however, the law does not apply to individuals who provide in-home supportive services (as defined by the state Welfare and Institutions Code), certain air carrier employees such as flight deck or cabin crew members subject to the federal Railway Labor Act (45 U.S.C. 181 et seq.), or employees covered by a valid collective bargaining agreement that expressly provides for paid sick days.
Eligible employees must work in California for 30 or more days within a year from the commencement of employment. Therefore, an employee who was employed prior to July 1, 2015 (the effective date of the law), will start to accrue paid sick leave on July 31, 2015, assuming the employee worked every day in July.
Employees accrue one hour of paid sick leave for every 30 hours worked. Employees who are exempt from overtime requirements (administrative, executive, or professional employees under a wage order) are deemed to work 40 hours per workweek, unless the employee’s normal workweek is less than 40 hours, in which case the employee will accrue paid sick leave based upon the normal workweek. Employers may limit accrual to 24 hours of paid sick leave per year.
Employers must allow employees to carry over all unused accrued paid sick leave to the following year; however, employers are not required to allow employees to accrue more than 48 hours of paid sick leave.
Employers’ current leave policies
Employers with existing paid leave or paid time off policies are not required to provide additional leave to their employees if their policies:
- Satisfy the law’s accrual, usage, and carry over requirements; and
- Provide no less than 24 hours of paid sick leave annually.
Employees are not entitled to be paid for accrued unused sick leave upon termination, resignation, retirement, or other separation from employment. However, if an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days must be reinstated. The employee is entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring.
Request for leave
Employees may request leave verbally or in writing. If the need for paid sick leave is foreseeable, the employee must provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.
Use of leave
Employees may 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. An employer may lend paid sick leave to an employee in advance of accrual at the employer’s discretion.
An employee may use paid sick leave for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member. In addition, an employee who is a victim of domestic violence, sexual assault, or stalking may use paid sick leave for any of the following:
- To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.
- To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking.
- To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
- To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.
Employers may not require as a condition of using paid sick time that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.
Employers may set a reasonable minimum increment of paid sick leave, not to exceed two hours, for the use of paid sick leave.
Pursuant to the law, employers may not:
- Deny an employee the right to use accrued sick leave; or
- Discharge, threaten to discharge, demote, suspend, or in any manner discriminate against any employee for:
- Using accrued sick leave.
- Attempting to exercise the right to use accrued sick leave.
- Filing a complaint or alleging a violation of the law.
- Cooperating in an investigation or prosecution of an alleged violation.
- Opposing any policy or practice that is prohibited under the law.
The law establishes a rebuttable presumption of unlawful retaliation for any adverse employment action occurring within 30 days of an employee engaging in the protected activity just described.
At the time of hiring, new employees must be provided a notice (as part of the Wage Theft Prevention Act notice), informing them of their rights to paid sick leave and their right to file a complaint with the Labor Commissioner in the event of a violation of the law.
Employers must also provide employees with written notice of their available amount of paid sick leave, or paid time off an employer provides in lieu of sick leave, 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.
Employers are required to display a poster, created by the Labor Commissioner, in each workplace that summarizes the requirements of the law. Employers that violate the posting requirement may be subject to a civil penalty of up to $100 per offense.
Employers must keep records documenting the hours worked and the paid sick leave accrued and used by an employee for three years. These records must be made available to employees for inspection within 21 days of a verbal or written request.
If an employer fails to maintain adequate records, it will be presumed that the employee is entitled to the maximum number of hours accruable under the law, unless the employer can prove otherwise by clear and convincing evidence.
Enforcement and penalties
The Labor Commissioner is responsible for enforcing the paid sick leave law. If after an investigation the Labor Commissioner finds that a violation of the law has occurred, the commissioner may order appropriate relief (including reinstatement, backpay, payment of sick days unlawfully withheld, and administrative penalties) for violations. If paid sick days were unlawfully withheld, the employee may recover the dollar value of the paid sick days withheld, or $250 multiplied by three — whichever is greater — up to an aggregate penalty of $4,000. If a paid sick leave-related violation results in other harm to the employee or person (such as discharge from employment), the administrative penalty will include $50 for each day that the violation occurred or continued, up to $4,000.
The Labor Commissioner or the Attorney General may also bring a civil action on behalf of an aggrieved employee against anyone who violates the law. In such case the employee may be awarded relief similar to that discussed above.
Steps to take now
While the law does not go into effect until July 1, 2015, employers should:
- Review and, if necessary, update their current paid sick leave and/or paid time off policies to ensure compliance with the law.
- Review and, if necessary, update their recordkeeping protocols to ensure compliance with the law.
- Monitor the Labor Commissioner’s website for developments in the law (regulatory releases, required posters, model notices, guidance documents, FAQs, etc.).
- Train supervisory, managerial, human resources, and payroll personnel on the law’s requirements.