California’s new sick leave law went into effect on July 1 of this year. It applies to all employers, no matter how many employees an employer has. There are very few exceptions, so all California employers need to know the law. The limited exceptions to the new sick leave law are: (1) Certain union employees, (2) State in home care workers, (3) Some air carrier employees.
Employers must give sick leave to employees who have worked at least 30 days within the employment year. The sick leave accrues at the rate of 1 hour for every 30 hours worked. Employers may provide only 24 hours (3 days) of sick leave per year if the employer offers its employees three sick days at the beginning of the employment year. Barring that, an employer must allow its employees to accumulate up to 6 days of sick leave per year. Nevertheless, an employer may still limit sick leave to just 3 days per year. In that case, unused leave must be carried over to the next year. After 90 days of employment, employees may begin to use accrued sick leave.
Employers must track sick leave accumulation either on employee wage statements or on separate sick leave statements. An employer can avoid the tracking headache by creating a policy in which employees receive at least 24 hours of sick leave at the beginning of each year. In that case, the only thing to track is the amount that the employee uses during the year. Employers must maintain records that track the accumulation and use of sick leave for a period of 3 years.
If tracked separately from vacation or PTO, California will not consider sick leave as a wage. In that case, an employer will not need to pay remaining balances to a terminated employee at the time of termination. However, if an employer includes sick leave with either vacation or PTO, then the sick leave will become a wage and will need to be paid out as wages at the time of termination.
Sick leave may be used for an employee’s health condition or for the health condition of a family member of an employee. The code defines “family” very broadly: Child, Parent, Spouse or registered domestic partner, Grandparent, Grandchild, and Sibling. An employee can also use sick leave for preventive care, domestic violence, sexual assault, and stalking.
No employer may retaliate against an employee for requesting sick time off or for attempting to enforce sick leave rights. The employer may require employees to use a minimum amount of sick leave, but that minimum amount may not be greater than 2 hours. Nevertheless, employees have the right to determine how much sick leave to use as long as they use at least the minimum amount. An employer must display a poster describing the requirements of the law.
The associated fines are very stiff. An employee can collect up to $250 for each withheld sick day, up to a maximum of $4,000. If the employee suffers other related harm, such as a wrongful termination, then the employer can suffer civil penalties of $50 for each day the violation remains uncorrected, up to $4,000. In addition, if an employer does not promptly comply with the law after receiving notice of its violations, then the state can collect a daily penalty of $50 with no limit. The Private Attorney General Act will allow collective penalties to accumulate. The prosecuting party can get fines, special damages for the employee(s), costs of suit, and attorneys’ fees.
Employers must be aware of this law. Ignoring it, or the rights conferred, can come at a hefty price.
S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 408-7543 (fax)