JUNE 2016 – The who, what, when and how of Mandatory Paid Sick Leave

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In 2014 California became the second state in the nation to provide paid sick leave. In 2015 amendments to the original legislation took effect.

The Act applies to private and public employers regardless of size. Any employee who has worked in California for the same employer for 30 days or more within a year from the beginning of his/her employment is entitled to paid sick leave. Part time and full time employees are covered as well as exempt and nonexempt employees. Employees not covered are those already covered by a union contract that specifically provides for paid sick leave, construction employees covered by a valid union contract, providers of in-home supportive services, certain air carrier employees and specified retired annuitants.

An employer with a paid sick leave policy that was in effect prior to January 1, 2015 is not required to provide an additional three days pursuant to the Act if the policy meets the accrual method. If the employer chooses to use one of the accrual methods accrued paid sick days must carry over to the following year of employment but an employer can cap the employee’s total accrual amount at 48 hours/six days.

An employer can require the employee to wait until the 90th day of employment before using paid sick days. A limit of 3 days or 24 hours in one year can be imposed by the employer. Although the law is silent about whether the employer can require a doctor’s note to validate the need for leave the California Labor Commission has taken the position that a doctor’s note cannot be required to use paid sick leave.

An employee cannot start using accrued sick days until the 90th day of employment. An employee can use paid sick time for an existing health condition or preventive care for themselves or a “family member”, under the Act family member is defined as a child, parent (including parents-in-law), spouse or registered domestic partner, grandparent, grandchild or sibling. Paid sick leave may be used for an employee who is a victim of domestic violence, sexual assault or stalking. Leave must be provided when an employee makes a verbal or written request.

The Act contains several notice, posting and recordkeeping requirements. An employer must provide an employee with a written notice setting forth the amount of paid sick leave available to the employee each pay period. There is a required poster advising employees of their sick leave rights, it must be posted where visible and easily read by all employees. Employers must keep records for at least three years that document the number of hours that each employee worked and paid sick day accrued and used by employee.

There are many nuances to this particular piece of legislation. Employers may want to consult their labor and employment counsel.

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