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.

Employ­ee eligibility

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.

Leave accru­al

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:

  1. Sat­is­fy the law’s accru­al, usage, and car­ry over require­ments; and
  2. Pro­vide no less than 24 hours of paid sick leave annually.

Cash out

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.

Pro­hib­it­ed conduct

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.

Notice

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.

Post­ing requirement

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.

Record­keep­ing

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.

Read More …