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Employment Law Alert: California Requires Employers to Provide Paid Sick Days for Workers

September 11, 2014

Effective July 15, 2015, all California employers regardless of size will be required to provide up to 3 days of paid sick leave for eligible part-time and full-time employees.  On September 10, 2014, Governor Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill No. 1522), which implemented this significant change.  Although the City and County of San Francisco previously passed a paid sick-leave mandate in 2006, this is the first statewide mandate.

Who is an Eligible Employee?
Any part-time or full-time employee who as of July 1, 2015 has worked in California for 30 or more days within a year from the commencement of employment.

The Act does not apply to:
Employees covered by a valid collective bargaining agreement which expressly provides for paid sick days, final binding arbitration of disputes concerning the application of its paid sick days provisions, premium wages rates for overtime worked, and regular hourly rate of pay of not less than 30% more than the state minimum wage;

Employees in the construction industry (performing onsite construction work) covered by a valid collective bargaining agreement expressly providing wages, hours for work, working conditions of employees, premium wages rates for overtime worked, and regular hourly rate of pay of not less than 30% more than the state minimum wage;

Employees who work as providers of in-home supportive services; or

An individual employed by an air carrier as a flight deck or cabin crew member subject to federal labor laws.

For What Reasons May the Employees Use the Paid Sick Leave?
An employee is entitled to use the paid sick days:

To take care of his or her own health, including if the employee is the victim of domestic violence, sexual assault, or stalking;

For diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or employee’s family members (“Family members” means children, regardless of age or dependency status, spouse, registered partner, sibling, the employee’s parents or the parents of the employee’s spouse).

How is the Paid Sick Leave Accrued?
Employees will accrue the paid sick leave at a rate of no less than one hour for every 30 hours worked.  Accrued paid sick days shall carry over to the following year of employment, but an employer may limit the use of paid sick days to 24 hours or 3 days in each year of employment.  An employer has no obligation to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided there are no other limits on accrual or use. 

How Much of the Leave May Employees Take at a Time?
Generally employees may determine how much paid sick leave they need to use, but the employer may set a reasonable minimum increment amount, such as 2 hours.

When May Employees Start Taking the Paid Sick Leave?
Employees are entitled to use accrued sick days beginning on the 90th day of employment. 

What if I Already have a Paid Sick Leave or Paid Time Off Policy in Place?
An employer is not required to provide additional paid sick days pursuant to the Act where the employer has a paid leave policy or paid time off policy, so long as that policy provides for an equal amount of leave as under the Act and the policy satisfies the accrual, carry-over and use requirements of the Act. 

How is the Paid Sick Leave to be Paid?
The rate of pay for paid sick leave is the employee’s regular hourly wage.  Payment must occur no later than the payday for the next regular payroll period after the sick leave is taken.

Must the Paid Sick Leave be Paid Out upon Termination?
An employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. 

What Documentation or Notice of this Policy Must I Give my Employees?
An employer shall provide an employee with written notice that sets forth the amount of paid sick leave available, or paid time off an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement or in a separate writing.  An employer must also display a poster containing this information, which will be provided by the Labor Commissioner.  Employers must maintain at least three years of records documenting the hours worked and paid sick days accrued and used by an employee.

What are the Penalties for Failing to Comply with the Act?
Employers who decide not to provide mandated sick days could face administrative fines, civil penalties, attorney’s fees, costs, and interest.  Employers who willfully violate the posting requirements of the Act would also be subject to a civil penalty of $100 for each offense. 

Further, employers may not discriminate or retaliate against an employee who requests paid sick days. 

For more information about the Healthy Workplaces, Healthy Families Act or to update your employee handbook to reflect these upcoming changes, please contact any member of Berliner Cohen’s Employment Law & Litigation Group:

Roberta S. Hayashi, roberta.hayashi@berliner.com
Christine H. Long, christine.long@berliner.com
Susan E. Bishop, susan.bishop@berliner.com
Kara L. Arguello, kara.arguello@berliner.com
Eileen P. Kennedy, eileen.kennedy@berliner.com
Jennifer Y. Leung, jennifer.leung@berliner.com

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