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Unpaid Sick Leave

Posted May 10, 2017 by S. Ward Heinrichs
Unpaid Sick Leave

Many state laws and the federal law require unpaid sick leave for qualifying employees who work for covered employers. The main federal sick leave law is The Family and Medical Leave Act (FMLA). It requires employers who have 50 or more employees within a 75-mile radius to provide employees with unpaid sick leave who have worked at least 1250 hours in the preceding 12 months and have worked for at least 12 months for the employer. The employer must also have 50 or more employees working each work day during 20 weeks in the present or preceding year. A qualifying employee may take up to 12 weeks of unpaid leave during a work year for a “serious health condition”, serious health condition of a family member, birth and bonding of/with a child, or placement of a foster child. Family member is defined as parent, spouse, or child.

California has a similar unpaid sick leave law called the California Family Rights Act (CFRA). The qualifications for covered employers and eligible employees are the same as the FMLA. It bestows some additional rights and has broader definitions of use in some cases.

California and other states have other leave laws too but most are not strictly related to sick leave. Those laws generally cover other reasons for unpaid leave from work.

Paid sick leave is a new trend in the United States. The U.S. has no comprehensive, federally mandated, paid sick leave law covering employees. However, in 2015, President Obama signed an order giving employees of government contractors up to seven days of paid sick leave. On the other hand, some states and Cities now require mandatory paid sick leave.

Connecticut, Vermont, Illinois, Massachusetts, and California have paid sick leave laws. California has the most employee friendly law. In addition, many cities outside of those states require paid sick leave, such as, Washington D.C., Seattle, Portland, New York City, Philadelphia, several New Jersey cities, etc. Some cities within California, such as San Diego, have even more generous paid sick leave than the state law.

Virtually all employers must give employees who work for them in California 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 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. Otherwise, employees may accumulate up to 6 days of sick leave per year, but employers may limit the use of sick leave to 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.

Employers must keep track of paid sick leave accumulation and use on wage statements or separate sick leave statements and must keep the records that track the accumulation and use of sick leave for a period of 3 years. However, if an employer elects to give 3 days of sick leave at the beginning of the year, the employee need not track accumulation of paid sick leave, only an employee’s use of it.

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 if that employee becomes a victim of domestic violence, sexual assault, or stalking. Employers may face lawsuits, penalties, or fines if they improperly deny the use of sick leave or retaliate against employees for properly using it.

The City of San Diego has its own sick leave law, as do some other cities in California. Most of the San Diego paid sick leave ordinance mirrors the California paid sick leave law, with a few notable exceptions that are more generous than the California law.

First, employers may limit the maximum accumulated paid sick leave to 80 hours (10 days). Second, employers may cap the amount of accrued sick leave that its employees may use to 40 hours (5 days) per year, but unused sick leave will carry over to the next year. Alternatively, employers may give 40 hours of sick leave each year and unused amounts will not carry over. Third, employees are eligible for sick leave if they have worked at least two hours during one week for the same employer. Of course, employees only accrue sick leave under the ordinance at 1 hour for every 30 hours worked, so an employee who only worked 2 hours during one week in an entire year would normally not have sick leave to use.

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

Employment Law Office of WARD HEINRICHS

4565 Ruffner St. Suite 207 San Diego 92111


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