Last year was the year of the minimum wage. This year is the year of paid sick leave. Connecticut is the only state that has an active sick leave law presently, but both California and Massachusetts have passed sick leave laws that will be going into effect on July 1, 2015. Additionally, 18 cities and towns have paid sick leave laws that are either in effect now or soon will be. Those cities are: San Francisco, Washington D.C., Seattle, Portland, New York City, Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Eugene, Oakland, Tacoma, and Philadelphia. The cities of Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, and Bloomfield are all in New Jersey. The other nine cities are scattered on both the East and West coasts. California is the only state that has a sick leave law in which cities, San Francisco and Oakland, have more employee friendly laws. Additionally, San Diego has a city wide referendum slated for a vote in June of 2016 in which the voters will decide whether the city will have greater sick leave protections for its employees than California will begin to provide on July 1 of this year.

Connecticut’s law is very limited: only hourly employees in a limited number of service occupations can receive paid sick leave, and, only if, those workers are employed by a business with 50 or more employees. The workers earn one hour of sick leave for every 40 hours worked. Massachusetts’ law covers more employees, but if the employer has fewer than 11 employees, the sick time is unpaid. Employees of cities and towns in Massachusetts are only covered if each municipality independently approves of the state law. The employees earn one hour of sick leave for every 30 hours worked. In contrast, the California law applies to all workers with almost no restrictions. Because I practice law in California, I have provided more details of the California law below.

All employers must give employees who work for them in California at least 3 days paid sick leave, if the employee has worked at least 30 days within the employment year. The sick leave accrues at the rate of 1 hour for every 30 hours worked. The employer 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. Otherwise, the employer must allow its employees to accumulate up to 6 days of sick leave per year, but may still limit each employee to the use of only 3 days per year. In that case, any unused balance may be carried over to the next year. Employees can begin to use accrued sick leave after 90 days of employment. Very few employees are not covered under this new law. The following are not covered: (1) Certain union employees, (2) State in home care workers, (3) Some air carrier employees.

Employers will need to track accumulated sick leave on employee wage statements or on separate sick leave statements. However, 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. An employer must keep the records that track the accumulation and use of sick leave for a period of 3 years.

Generally, sick leave is not considered a wage and an employer need not pay out any remaining balance to a terminated employee, unless sick leave is lumped together with PTO or vacation. If they are lumped together, 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. An employee may also use it for preventative care. Family is defined very broadly: Child, Parent, Spouse or registered domestic partner, Grandparent, Grandchild, and Sibling. An employee can also use sick leave for domestic violence, sexual assault, or stalking.

An employer must display a poster describing the requirements of the law. The employer may not retaliate against the employee for requesting sick time off and for taking action to enforce the employee’s right to take paid sick leave. The employee has the right to determine how much sick leave he or she needs. The employer may require a minimum amount of sick leave that must be used, but that minimum amount may not be greater than 2 hours.

This new law has stiff fines associated with it. An employee can collect up to $250 for each withheld sick day, up to a maximum of $4,000. In addition, if the employee suffers other related harm, such as a wrongful termination because of the sick leave policy, then the state can assess civil penalties of $50 for each day the violation remains uncorrected, with the maximum penalty capped at $4,000. Further, if an employer does not promptly comply with the law after receiving notice of its violations, then the Labor Commissioner 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 special damages for the employee(s), costs of suit, and attorneys’ fees. All the remedies described accumulate and do not cancel each other out.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)