United States: Amendment To California's Sick Leave Law: The Healthy Workplaces, Healthy Families Act Of 2014

Keywords: emergency amendment, sick leave law

Governor Jerry Brown has signed an emergency amendment to California's new sick pay law, codified in Labor Code sections 245 et seq., to clarify and modify a number of the requirements of the law. The bill went into effect immediately upon Governor Brown's signature on July 14, 2015, as an urgency statute.

Under the amendment, as of July 1, 2015, employers must provide paid sick leave to all employees who work in California for the same employer for 30 or more days within one year from commencing employment. Exempt and nonexempt employees are covered, unless their employment is governed by a collective bargaining agreement or one of a few exceptions.

Purposes For Which Sick Leave Can Be Used

Under the law, employees may use paid sick leave for:

  • The diagnosis, care or treatment of an existing health condition of, or preventative care for:

    • An employee or
    • An employee's family member, which includes spouses, parents, in-laws, registered domestic partners, grandparents, grandchildren, siblings and children (including biological, adopted, foster children, stepchildren, legal wards, or children to whom the employee stands in loco parentis); and/or
  • Seeking relief from domestic violence, sexual assault or stalking, including medical attention and psychological counseling.

The law does not require employees to provide employers with medical verification to take sick leave. Instead, sick leave must be provided upon oral or written request of the employee. If the need for leave is foreseeable, the employee must give reasonable advance notice; where the need is not foreseeable, the employee need only give notice as soon as practicable.

Three Ways To Provide Sick Leave

There are three alternative ways in which employers can comply with the requirements of the law.

The Accrual Method

  • Accrual Requirements:

    • Employees must be permitted to accrue paid sick leave at a rate of no less than one hour per 30 hours worked (including overtime), beginning at the commencement of employment or on July 1, 2015, whichever is later. (An exempt employee is deemed to work 40 hours per workweek, unless the employee's normal workweek is less than 40 hours, in which case the employee may accrue paid sick days based upon his or her normal workweek.)

      The requirement works out to a little more than eight days of sick leave per year for employees who work full time (i.e., 40 hours per week).
    • Alternatively, employers may use a different accrual rate, provided that employees accrue paid sick leave on a regular basis and have no less than 24 hours, or three days, of accrued sick leave or paid time off available for use by the 120th calendar day of employment, each calendar year or in each 12-month period.

      This alternative approach enacted by the amendment relieves employers of the obligation to track the employee's actual hours worked in order to accrue sick leave, so long as the employee accrues 24 hours of leave by the 120th day of employment, each calendar year or each 12-month period.
  • Cap on Accrual: Employers may cap an employee's total sick leave accrual at 48 hours or six days at any one time, provided that an employee's right to accrue and use paid sick leave are not otherwise limited. Employees who do not work a typical eight-hour day are to be afforded the more generous of the two options. Thus, an employee who typically only works six hours per day gets to take up to 24 hours (four days on their schedule) of sick leave per year, while an employee who works 10- hour days may take only three days (30 hours) per year.
  • Carry-Over of Accrued Sick Leave: Accrued unused sick days must carry over to the following year of employment, though the total amount of accrued sick days can be capped, as described in subsection b. above.
  • Use of Sick Leave: Employees are entitled to use accrued sick leave beginning on the 90th day of employment. However, the amount of paid sick leave employees can use in each year of employment, calendar year or 12- month period can be limited by employers to 24 hours or three days; employers may also set a reasonable minimum increment not to exceed two hours for the use of paid sick leave.
  • Pay-Out Upon Termination: Employers are not required to pay out any accrued, unused sick leave upon an employee's termination, resignation, retirement or other separation from employment. However, if an employee separates from employment and is rehired by the employer within one year from the date of separation, the previously accrued and unused sick leave must be reinstated.

The "Up Front" Method

The second option for providing paid sick leave is the "front loading" method in which the employer provides employees with at least three days, or 24 hours, of sick leave or paid time off (i.e., the full amount of leave) at the beginning of each year of employment, calendar year or 12- month period. Under the "up front" method, no accrual or carry over of the sick leave is required because the full amount of leave is received at the beginning of each year. For initial hires, the employer can require the employee to wait to use the sick leave beginning on the 90th day employment.

The Employer PTO Or Paid Leave Policy

Employers that have paid time off (PTO) or paid leave policies are not required to provide additional sick leave, as long as the employer's existing (or newly created) policy makes available an amount of leave that may be used for the same purposes and under the same conditions as the required sick leave, and the policy satisfies one of the following conditions:

  • The accrual, carry over and use requirements of the statute.
  • The employer's policy provided paid sick leave or paid time off to a class of employees before January 1, 2015, pursuant to which employees accrued, on a regular basis, no less than one day or eight hours of sick leave or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days, or 24 hours, of sick leave or paid time off within nine months of employment.

    If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer must comply with any accrual method described above or provide the three days, or 24 hours, of paid sick days or paid time off to employees at the beginning of each year of employment, calendar year or 12-month period.

However, if the employer uses a PTO or paid leave policy to satisfy the requirements of the Sick Leave Law, the employer is usually required to pay out any accrued PTO or paid leave upon termination of employment. The amendment to the statute clarifies that an employer is not required to reinstate accrued paid time off to an employee who was paid out at the time of termination, resignation or separation of employment and is rehired within one year of his or her date of separation from employment.

Other Requirements

Rate Of Pay

Employers may calculate the rate at which paid sick leave must be paid using the methods set forth below.

  • For nonexempt employees, paid sick time may be calculated either:

    • in the same manner as the employee's regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek (i.e., the total compensation earned during the workweek divided by the total hours worked during that workweek) or
    • by dividing the employee's total wages, not including overtime premium pay, in the full pay periods of the prior 90 days of employment, by the number of hours worked during that period.
  • For exempt employees, paid sick time is calculated in the same manner as the employer calculates wages for other forms of paid leave time (such as PTO or vacation).

Timing For Payment

Sick leavemust be paid no later than the payday for the payroll period following when the leave was taken.

Notice Requirements

Beginning on January 1, 2015, employers must satisfy certain notice requirements relating to the new paid sick leave entitlement. These requirements apply to all employees, except certain public employees, employees exempt from overtime laws and those covered by certain collective bargaining agreements.

  • Posting Requirements: Employers must display a poster, in a conspicuous place at the workplace, containing the following information regarding the employer's sick pay policy: (i) an employee is entitled to accrue, request and use paid sick days; (ii) the amount of sick days provided; (iii) the terms of use of paid sick days; (iv) retaliation or discrimination against an employee who requests paid sick leave is prohibited; and (v) the employee has the right to file a complaint against an employer who retaliates.
  • Notices to Employees: In addition, upon hiring or within seven days of any change to the employers' sick leave policy, employers must provide employees with an individualized "Notice to Employee" that includes the relevant information regarding the employer's paid sick leave policy.

Documentation Of Sick Leave Days

The employer must notify employees of the amount of paid sick leave an employer provides, or of the amount of paid days off provided in lieu of sick leave, on either the employee's itemized wage statement or in a separate writing provided to employees on paydays. If an employer provides unlimited paid sick leave or paid time off to employees, the employer may indicate on the notice or itemized wage statement that the employee's entitlement is "unlimited."

Record Keeping Requirements

Employers must retain records of each employee's hours worked and paid sick days accrued for three years, and they must also make those records available for inspection by the employee if requested.

If the employer fails to maintain adequate records, the new law presumes that the employee is entitled to the maximum number of hours accruable under the Act unless the employer can show otherwise by "clear and convincing evidence."

Retaliation

Employers may not retaliate or discriminate against employees who (i) exercise the right to use paid sick leave, (ii) cooperate in an investigation or prosecution of an alleged violation of the Act or (iii) oppose a policy or practice prohibited by the Act.

Originally published July 29, 2015

Learn more about our Employment Litigation & Counseling practice.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions