About three years ago, California passed a law requiring paid sick leave for employees. That law guarantees all employees get at least 3 days of paid sick leave. Some of the details of that law are below. Before that sick leave law, various laws allowed for unpaid leave for medical conditions, but not paid leave.

No federal law that applies to all employees in the United States guarantees vacation time or even regulates vacation time. Rather, each state has its own variation on vacation law regulations. In California, no law requires employers to provide vacation, but it has laws that regulate vacation time once an employer provides it as a benefit.

In California, sick leave, unlike vacation or paid time off (PTO), is not a wage. That means an employer does not need to pay an employee for accrued sick leave at the time the employee leaves employment. In contrast, vacation and PTO are wages, and, consequently, employers must pay cash to employees for all accrued and unused vacation at the time they leave employment.

Sometimes the lines between sick leave and vacation can meld. If an employer has a true PTO policy that allows employees to use accrued PTO for any personal reason, including sick days, then sick leave becomes a wage. In that case, the employer must pay an employee for all unused PTO even though the employee might use some of it for sick days. Employers who have PTO policies might want to reconsider them. If those employers have separate sick leave and vacation policies, then the law will not require them to pay out accrued sick leave to employees who leave employment.

PAID SICK LEAVE
Virtually all employers must give employees who work for them in California paid sick leave, assuming the employee has met the bare requirements of the law. 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 3 sick days at the beginning of the employment year and allows newly hired employees to use all 24 hours after 120 days of employment. Under those circumstances, the employer need not track the accumulation of sick leave on wage statements or separate sick leave statements.

In contrast, employers may allow employees to accumulate up to 6 days of sick leave per year. Employers may limit the use of sick leave to only 3 days per year, but any unused balance may be carried over to the next year. In this case, employers have the burden of tracking the accumulation of sick leave and must keep the records that track the accumulation and use of sick leave for a period of 3 years.

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. An employee can also use sick leave if that employee becomes a victim of domestic violence, sexual assault, or stalking.

An employee may determine the amount of sick leave the employee will use, but an employer may require an employee to use sick leave in minimum increments of no more than two hours. Recently, I had a debate with another lawyer related to that section of the California sick leave law. In an online question and answer session, an employee asked if an employer can tell an employee to take the whole day off with pay when that employee only needed to use a few hours of sick leave. The other attorney said that an employer controls scheduling and may tell the employee what his or her schedule is. I countered and said that the sick leave law allows the employee to determine how much sick leave to use. If the employer requires more time off than the employee wants to take for sick leave, that might violate the sick leave law.

VACATION
In California, employers are not required to provide vacation for employees. For those employers who do, the law prevents them having a “use it or lose it” policy, but they can cap the total accrual of vacation. The idea behind that is, once an employee accrues vacation, that time becomes an earned wage that must be paid at some point in the future. The employer’s vacation policy governs at what rate vacation time accrues.

Generally, employers can require employees to use vacation time when employees take time off work for personal reasons. In fact, after an employee uses sick leave, an employer can require employees to take vacation time for sick days. Employers can even require salaried employees to take vacation time when the employee takes personal time off. After salaried employees use up their vacation days, employers must be careful about deducting wages from them. If they do it improperly, the salaried person may lose exempt status, and the employer may need to pay that employee for overtime.

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)