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Legal Developments


 

Paid Sick Leave Comes to California:

The Healthy Workplaces, Healthy Families Act

          An estimated 40% of California’s workers do not currently receive paid sick leave. Beginning on July 1, 2015, in the largest expansion of its kind, the State of California will extend paid sick leave to almost all workers in the state.  This article provides an overview of the new law.

        The Healthy Workplaces, Healthy Families Act of 2014, passed on September 10, 2014, requires that all California employees, including part-time, seasonal, and temporary workers, at employers of any size, receive up to three paid days off each year for a personal sickness or to care for a family member. California joins two states, Massachusetts and Connecticut, and eighteen cities that have enacted similar paid sick leave laws.

        The amount of paid leave available to an employee will accumulate based on the number of hours he or she works. Beginning on July 1, 2015, the law requires that employees receive one hour of paid sick leave for every 30 hours he or she works.[1] For an employee who works 30 hours per week, this translates to four hours of paid sick leave available by July 29, 2015, eight hours by August 26, 2015, and twelve hours by September 23, 2015.[2] The rate of pay must be at least the employee’s hourly wage.[3]

        Employers may limit an employee’s use of paid sick leave to three days (24 hours) per year. Accrued sick leave must carry over to the following year, but total accrual can be capped at six days (48 hours).[4] Payout of accrued sick leave is not required at separation.[5]

        Employees can use their accrued paid sick leave time for their own medical needs, including preventive care, or that of a family member.[6] A family member is defined as a child, parent, spouse, sibling, grandparent, or grandchild.[7] Leave can also be used for victims of domestic violence, sexual assault, or stalking.[8] While the law does not state whether an employer can require a doctor’s note, the California department implementing the law has recently advised employers that such a practice is likely prohibited.[9]

        A request for sick leave can be made either orally or in writing, with ‘reasonable’ advance notice required if the need is ‘foreseeable.’[10] While employees can take less than a full day off as leave, the employer may require that they take a minimum amount of time, not to exceed two hours, when they take incremental sick leave. Employers cannot require employees to find replacements to cover their shifts as a condition of using paid sick leave.[11]

        Employers that already provide sick leave can keep their current policies, as long as it provides at least three days (24 hours) of paid leave per year that can be used for personal and family health care and meets or exceeds the law’s other requirements. Because the law sets only minimum requirements, any employer can offer more generous paid leave policies.

        All employers, including those with existing qualifying leave policies, must provide employees with written notice of their accrued paid sick leave on either their paystub or separate writing on payday.[12] All employers must also display a paid sick leave poster advising employees of their right to sick leave.[13]

        The law will be enforced by Labor Commissioner, although private enforcement is possible through the Private Attorney General Act.[14]

        For employees in need of paid leave in excess of three days, the California State Disability Insurance fund continues to provide benefits equal to approximately 55% of earnings for individuals on leave for disability or illness, including pregnancy-related disabilities. Leave taken to care for a seriously ill family member or bond with a new minor child is similarly covered.

Eligibility

        The law applies to employers of all sizes and includes part-time, seasonal, and temporary employees. The law also applies to all public sector employers in California. The only workers specifically excluded from coverage are home-care workers paid through Medi-Cal.[15] Individuals who are properly classified as independent contractors are ineligible, as they are not employees.

        Individual employees must work in California for at least 30 days within a year at the same employer to be eligible.[16] New employees can begin using accrued paid sick days beginning on the 90th day of employment.[17]

Impact on Unionized Workplaces

        The bill excludes employees covered by a collective bargaining agreement, but only if the contract expressly provides for 1) paid time off that can be used for sick leave, 2) final and binding arbitration of disputes concerning use of sick leave, 3) premium wage rates for all overtime hours worked, and 4) a regular hourly rate at least 30% greater than the state minimum wage, which is an hourly rate of $11.70 today and $13 when the minimum wage rises on January 1, 2016.[18]

        If these requirements are not met, a unionized employer must ensure that its current sick leave rules meet or exceed the requirements of the Healthy Workplaces, Healthy Families Act. For both public and private sector employers, any changes must be negotiated in advance with the union that represents these employees, absent a clear and unmistakable waiver in the contract.

        The bill provides less protection for unionized workers in the construction industry. No sick leave is required as long as the collective bargaining agreement provides overtime pay and a regular hourly rate at least 30% greater than the state minimum wage.[19] For construction collective bargaining agreements entered into after January 1, 2015, the requirements of the paid sick leave law apply unless the contract expressly waives the requirements of the law.

        For more information, please visit http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm

 By Daniel E. Curry | May 5, 2015

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[1] Cal. Labor Code § 246(b)(1).

[2] For employees properly classified as exempt from overtime requirements, a workweek is deemed to be 40 hours per week or the employee’s normal workweek, if less than 40 hours. § 246 (b)(2).

[3] § 246(k).

[4] § 246(d).

[5] § 246(f).

[6] § 246.5(a)(1).

[7] § 245(c).

[8] § 246.5(a)(2).

[9] http://www.dir.ca.gov/DLSE/ab1522.html.

[10] § 246.5(a); 246(l).

[11] § 246(j), 246.5(b).

[12] § 246(h).

[13] § 247.

[14] § 248.5.

[15] § 245.5(a)(3). This last-minute carve-out remains controversial. See http://www.latimes.com/local/political/la-me-pc-seiu-paid-sick-days-20140828-story.html

[16] § 246 (a).

[17] § 246 (c).

[18] § 245.5(a)(1).

[19] § 245.5(a)(2).