OCT 2014 – NEW CALIFORNIA LAW REQUIRES PAID SICK LEAVE

California recently has adopted a new law, the Healthy Workplaces, Healthy Families Act of 2014 (the “Act”), that will require employers to offer almost all California employees, including part-time employees, at least three paid sick days per year. While the law will not become effective until July 1, 2015, it is important that California employers begin to think about whether their current policies meet the minimum requirements of the law and also whether new policies need to be created.

Employer Action Items

Employers should review their current policies to assess whether their sick leave or other paid leave policies comply with the new statute’s requirements.

In particular, employers who restrict the use of sick leave or paid time off to employees who work a minimum number of hours per week will either need to expand the current policy’s coverage or make a separate policy that gives the statutorily mandated minimum number of sick days to employees not eligible for the benefit under the employer’s current policy.

Employers also will need to review whether existing sick leave policies allow use of sick leave for all purposes prescribed by the new law.

Eligibility and Use of Sick Leave

Employees who, on or after July 1, 2015, work in California for thirty (30) or more days within a year from the start of their employment, will be entitled to receive paid sick leave pursuant to the Act. The Act provides that an employee is to accrue no less than one hour of paid sick leave for every thirty hours worked. Employees will be entitled to use their accrued sick days beginning on the 90th day after their employment starts. Accrued sick days are to be carried over to the following employment year under the Act; however, employers may limit an employee’s use of paid sick days to twenty-four (24) hours or three (3) days each year. Additionally, in the event a policy makes the full amount of leave available at the beginning of each year, no accrual or carry over will be required pursuant to the Act. In any event, employers are not required to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days.

Under the Act, employees can use sick leave for the diagnosis, care or treatment of an existing health condition of, or preventive care for, the employee or a family member. The Act defines “family member” to include: a child, a parent, a spouse, a registered domestic partner, a grandparent, a grandchild, and a sibling. Sick time must also be made available to victims of domestic violence, sexual assault, or stalking to obtain treatment for mental or physical injuries; to obtain services from a domestic violence shelter, program or rape crisis center; or to participate in safety planning and to take action to increase safety from future domestic violence, sexual assault or stalking.

The Act expressly excludes certain employees covered by a valid collective bargaining agreement, certain providers of in-home supportive services, and certain employees in the construction industry covered by a valid collective bargaining agreement.

Employers with Existing Policies

Employers who currently have a paid leave policy or paid time off policy will not be required to provide additional paid sick time under the Act if the current leave policy meets certain enumerated requirements. The leave policy must at least make available an amount of leave that may be used for the same purposes and under the same conditions specified in the Act, and the policy must either:

• satisfy the accrual, carry over, and use requirement of the Act; or
• provide no less than twenty-four (24) hours or three (3) days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year or 12-month basis.

Accrued Sick Leave & Termination

Under the new law, employers will not be required to pay employees their accrued, but unused, paid sick days upon termination; however, an employer will have to reinstate such sick leave if an employee is rehired within a year from the date of separation.

Posting and Notice Obligations

The Act further requires employers to display in the workplace a poster to be created by the Labor Commissioner and to include on the wage notice provided to new employees various attestations regarding the right to sick leave. (As with the poster, the statute directs the Labor Commissioner to revise its template wage notice accordingly.) Employers are required to maintain records regarding sick-leave use and accrual for at least three years and to make such records available to employees upon request as prescribed in Labor Code Section 226. Finally, the Act requires employers to include the amount of sick leave, or paid time off provided in lieu of sick leave, available for use on either the employee’s itemized wage statement or a separate writing provided on the designated pay date.