California Gets Sick: Paid Sick Leave, That Is

Following a trend, including a recent amendment in New York City reported here, on September 10, 2014, California Governor Jerry Brown (D) signed legislation into law that will require most California employers to provide up to three paid sick days per year for employees. The law, titled “Healthy Workplaces, Healthy Families Act of 2014,” will go into effect on July 1, 2015. Unlike other California leave laws, there is no exemption for small employers.

Covered Employees and Definitions

Under the new law, employees (including part-time and temporary employees) who have worked 30 or more days within the state of California over a period of one year will be entitled to accrued sick leave. The paid sick leave accrues at a rate of one hour for every 30 hours that the employee works. The employer has a grace period of the first 90 days, during which it can limit the employee from taking leave. And the employer may limit employees to using 24 hours of paid leave per year and may cap the total accrual of paid sick days at 48 hours. Upon termination, an employer is not required to be paid for any accrued, but unused, sick days. However, if the employer rehires the employee within one year of separation, the employer must honor any unused sick days the employee accrued previously.

The law defines appropriate uses of paid sick leave as time spent for the diagnosis, care, or treatment of an employee’s existing health condition or the existing health condition of a family member. Covered family members include spouses, registered domestic partners, children (regardless of age), parents (including stepparents and parents-in-law), grandparents, and siblings. The law also covers preventive care of an employee or an employee’s covered family member and permits the use of sick days for victims of domestic violence, sexual assault, or stalking. Employees must provide “reasonable advance notification” of their need to use the leave as soon as practicable and such requests may be made orally or in writing.

Notice and Recordkeeping Requirements for Employers

Covered employers must provide employees with a written notice of available paid sick leave or paid time off provided in lieu of sick leave. The notice must be either on the employee’s itemized wage statement or in a separate writing provided on the employee’s pay date. The law also imposes new record retention requirements regarding employee usage and accrual, which the employer must maintain for three years. The employer must make such records available to the employee within 21 days of a written or oral request. Failure to keep accurate records will result in a presumption that the employee is entitled to the maximum number of accruable sick leave hours.

When an employer hires a new employee, the employer must provide — as part of the Wage Theft Prevention Act notice required by California law — a notice of the employee’s entitlement to paid sick leave and his or her right to file a complaint with the Labor Commissioner when violations occur. Employers will also be required to post a workplace notice from the Labor Commissioner regarding this new law in a place that all employees can see.

Failure to Abide by the Law

The California Labor Commissioner is charged with the law’s enforcement and regulation. The Labor Commissioner may order “any appropriate relief” to employees who are denied sick days or terminated in retaliation for asserting rights under the law, including reinstatement, backpay, payment of unlawfully withheld sick days, administrative penalties, and enforcement fines payable to the state. The law also authorizes the Labor Commissioner or the Attorney General to institute a civil action against an employer on behalf of an aggrieved employee.

Growing Trend?

A small but growing number of state and city governments have passed paid sick-leave mandates, with San Francisco in 2006 becoming the first US city to do so. Many cities and states are considering these measures. Currently, there is no federal law guaranteeing paid sick leave for workers. The Bureau of Labor Statistics estimates that about four out of 10 workers in the US are not covered by a sick leave plan. This number could significantly shrink given the millions of employees in California who now have coverage under the new law.

Arent Fox will continue to monitor the developments in the area of paid sick leave. If you have any questions about this alert, please contact the authors or the Arent Fox professional who normally handles your matters.