By Carl Larson
Who qualifies for Paid Sick Leave (“PSL”)?
Employees who work 30 or more days for the same employer providing the leave qualify.
This includes part-time, seasonal, and full-time employees.
Who is excluded from the PSL law’s requirements?
(1) Employers who already provide paid time off (“PTO”) or PSL plans which provide for accrual of sick leave on a regular basis, so long as:
· at least 24 hours of paid time off are accrued by the 120th calendar day of employment, calendar year, or 12-month period; and
· leave carries over at least “3 days or 24 hours” of sick leave from year to year; and
· the leave is permitted to be used for the same purposes allowed in the PSL law.
(2) Employers who provided a PTO or PSL plan to a class of employees before January 1, 2015 that provided leave accrual on a regular basis so long as:
· no less than one day or eight hours of sick leave accrued within three months of
employment each calendar year or 12-month period; and
· employees were eligible to earn at least 3 days of sick leave or paid time off within nine months of employment.
(3) Employers already covered by a collective bargaining agreement that meet certain requirements.
(4) In-home support services employees.
(5) Airline flight deck or cabin crew employees who are already provided with compensated time off equal to or exceeding the requirements of the PSL law.
(6) Public employees who receive a retirement allowance.
Does the PSL Law apply to employees who work in California but are employed by an out-of-state employer?
Yes. All employees who work at least 30 days in California for the same employer are covered regardless of where the employer is based.
How much leave are employers required to provide?
The PSL law generally requires employers to grant employees at least “24 hours or 3 days of leave.” Please note that although the law as written requires 24 hours or 3 days of PSL, this requirement is based on a standard 8-hour day/40-hour week schedule. The legislature did not consider harvesters and other agricultural workers who work a varying schedule that often requires at least 10-hour days. Although the terms “days” and “hours” are not well defined under the new PSL regulations, the safest, most conservative approach in light of the purpose of the statute is to provide 30 hours of PSL for agricultural workers who work a 10-hour day schedule.
What are the use requirements?
· Employers must provide at least “24 hours or 3 days”* of leave at the beginning of each year of employment, calendar year, or 12-month period.
· Leave is not required to be carried over.
· Pro-rating the amount of leave is not permitted.
· Can an employer using the frontloading method pro-rate because of the July 1 start date?
o No. Pro-rating of leave is not permitted by the statute. However, an employer can choose whether to provide the frontloading in each year of employment, calendar year, or other 12-month basis.
· Employers may allow leave to be accrued on another basis, so long as it is accrued at regular intervals, and will result in at least 24 hours or 3 days* of sick leave available bythe 120th calendar day of employment.
· Employees accrue leave on the later of July 1, 2015 or their date of hire.
· Leave must be carried over from year-to-year up to a maximum of “48 hours or 6 days.”*
* In accordance with the interpretation of “3 days or 24 hours” agricultural employees who regularly work 10 hour shifts should be allowed to carry over up to 60 hours.
Can an employer use one method for seasonal workers and another for year-round and another for other classes of employees?
Yes. The law permits employers to use one method for one class of employees, and a different method for another class of employees so long as all methods are compliant.
When does accrual under the new law begin?
Accrual begins the later of July 1, 2015 or date of hire for employees who have worked in California for the same employer for more than 30 days in a year.
When can the sick leave be used?
Employees can use sick leave after 90 days of employment.
For what purposes can leave be used?
Employees may take leave for treatment, diagnosis, or preventative care of self, parents, children, spouse, registered domestic partner, grandparents, grandchildren, or siblings.
Employees may also take leave to obtain services or take other steps in dealing with domestic violence, stalking, or sexual assault.
Can an employer limit the amount of sick leave employees can take each year?
Yes. The use of sick leave may be limited to “3 days or 24 hours” of leave each year. Again, the meaning of 3 days in this context is not clear. In the case of agricultural employees regularly working 10 hours shifts, a conservative approach would raise the limit on use to up to 30 hours each year. An employer may also set a minimum increment of two hours for the use of leave.
Is an employer required to “cash out” unused sick leave?
No. The statute does not require an employer to cash out unused sick leave ever. However, unused sick leave is subject to the reinstatement provisions below.
If an employee is rehired within 1 year of termination, is the employer required to reinstate unused sick leave?
Yes. If an employer rehires an employee within 1 year of separation from employment, any unused sick leave accrued by the employee previously must be reinstated.
What are the record-keeping requirements?
The PSL law requires that employers keep records of paid sick leave accrual and use for three years.
How does this affect wage statements?
Employers must provide a written notice that sets forth the amount of PSL available on employee wage statements or a separate writing provided with the statement.
Counsel to Management:
This guide generally addresses compliance with the paid sick leave law in general and the options facing employers. Deciding which of these options best fits your needs, provides a strategic advantage, or how the options apply to your unique situation requires a more in-depth analysis. If you have questions about the paid sick leave law as it applies to your business please contact the Saqui Law Group.