Employers should review their existing paid sick leave and/or PTO policies to ensure they remain consistent with the ever-changing paid sick leave laws in every jurisdiction in which they operate.
In June 2016, San Diego, Los Angeles and San Francisco created new, or expanded their existing, paid sick leave laws. These changes further complicate employers’ efforts to comply with the tangled and constantly-evolving web of state and local laws regarding paid sick leave. This Alert identifies key changes to existing laws and the resulting compliance challenges for California employers.
Eligibility: San Diego’s paid sick leave ordinance applies to nearly all exempt and nonexempt employees who, in one or more calendar weeks of the year, work at least two hours in the City of San Diego. The ordinance excludes limited categories of workers, such as camp counselors and or individuals employed under a publically subsidized short-term youth employment program.
The ordinance took effect on July 11, 2016.
Accrual and Carryover: Eligible employees accrue one hour of paid sick leave for “every 30 hours worked … within the geographic boundaries” of San Diego. Employees begin accruing paid sick leave upon commencing employment and are eligible to use accrued leave on or after the 90th day of employment.
While employers can cap an employee’s annual use of paid sick leave at 40 hours (compared to 24 hours under state law), employers may not limit accrual or annual carryover. Employers can satisfy their paid sick leave obligations by implementing a paid time off (PTO) policy with accrual, use and carryover terms that are at least as liberal as those required by the ordinance. However, this is an illusory option for most employers, as nearly all PTO plans cap accrual, which the ordinance does not allow.
It is important to note that the City Council is considering amendments to the ordinance that, if passed, will provide employers with flexibility in implementation. Significantly, the amendments would allow employers to “front load” (40 hours) and impose an 80-hour cap on accrued sick leave. These changes will likely make it more feasible for employers to satisfy their sick leave obligations with existing PTO plans. Most commentators anticipate that these amendments will pass, so employers should stay tuned, as additional changes may be on the horizon.
Use of Paid Sick Time: An employee may use accrued paid sick time under the following circumstances:
- When she or he is unable to work due to his or her own medical condition, when needed to obtain medical treatment or a diagnosis or for “other medical reasons.”
- To assist a family member with an illness or in obtaining medical treatment or diagnosis;
- When the employer’s business is closed due to a public health emergency;
- To care for a child whose school or child care provider is closed due to a public health emergency; and
- To obtain (for the employee or his or her family member) specified services (e.g., counseling, relocation, medical treatment) due to domestic violence, sexual assault or stalking (referred to as “safe time”).
The ordinance broadly defines “family member” to include a child (including adopted, foster, step, a legal ward, a child of a domestic partner or child in loco parentis), spouse, parent (including foster, adoptive, step, etc.), grandparent, grandchild, sibling (whether biological, adopted or step) or the child or parent of a spouse.
Employers may establish a reasonable minimum increment for the use of paid sick leave not exceeding two hours.
Notice of Use: When the need for leave is foreseeable, the employer may require reasonable advance notice not to exceed seven days prior to the commencement of leave. State law also allows for a reasonable notice requirement, but does not create a seven-day limit. When the need for leave is not foreseeable, the employee need only provide notice “as soon as practicable.”
When an employee is absent for more than three consecutive work days, the employer may require “reasonable documentation” that the leave was for a purpose set forth in the ordinance. However, employers “must accept” as reasonable a document signed by a licensed healthcare provider indicating the need for the amount of leave taken. The employee cannot be required to identify the nature of the illness or medical condition for which leave is needed.
Notably, the statewide paid sick leave law does not allow employers to require medical documentation from employees using paid sick leave. Thus, employers should consider not requiring documentation, at least for paid sick leave to which an employee is entitled under state law (i.e., up to 24 hours in a 12-month period).
Notice and Anti-Retaliation: The ordinance requires employers to post a city-published notice at the workplace that provides employees notice of their rights under the ordinance. Employers must also provide all covered employees notice of the employer’s name, address, telephone number and obligations under the ordinance. The notice must be in English and, in most circumstances, the employee’s primary language. This requirement applies to exempt and nonexempt employees so compliance with the state Wage Theft Prevention Act is not sufficient under the ordinance.
Employers may not retaliate against an employee who makes a good faith report of a violation of the ordinance, who informs any person of his or her rights under the ordinance or who participates in any judicial or administrative proceeding related to a violation of the ordinance.
Effective July 1, 2016, Los Angeles employees are entitled to paid sick leave in excess of that provided by state law. The Los Angeles ordinance appears to be even more generous than the San Diego ordinance.
Eligibility: Los Angeles’ sick leave ordinance applies to all employees who work two or more hours in a particular week with the City of Los Angeles. Employees who work in Los Angeles for the same employer for 30 days within a year of the commencement of employment will accrue paid sick leave.
Accrual and Carryover: Los Angeles employees begin accruing paid sick leave on their first day of employment or July 1, 2016, whichever date is later. Employers can comply with the ordinance by: (a) providing 48 hours of paid sick leave at the beginning of each year of employment (calendar year or 12-month period) or (b) providing one hour of sick leave for every 30 hours worked.
Employees are entitled to use 48 hours of paid sick leave each year and to accrue at least 72 hours. Employees may begin using paid sick leave on the 90th day of employment. Employers can satisfy their paid sick leave obligations by providing a PTO or vacation policy that has accrual, use and carryover rules at least as generous as the Los Angeles ordinance.
Use of Paid Sick Time: Los Angeles employees are generally entitled to use paid sick leave for the same reasons set forth in state law, including to care for family members. However, in a significant departure from state law, employees can also use sick leave for “for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” This broad use provision greatly expands the scope of permissible use of sick leave.
Notice of Use and Anti-Retaliation: The Los Angeles ordinance allows employers to require “reasonable documentation” of the need for paid sick leave. State law does not contain such a provision. Thus, Los Angeles employers should consider not insisting upon documentation in connection with the employee’s use of the first 24 hours of paid sick leave in a 12-month period.
An employer may not discriminate against an employee for opposing any practice that is inconsistent with the ordinance, or otherwise exercising their right to use paid sick leave.
San Francisco enacted its paid sick leave ordinance in 2007. Subsequently, California passed a statewide paid sick leave law that is inconsistent with San Francisco’s ordinance in key respects. Effective January 1, 2017, San Francisco’s paid sick leave ordinance will more closely track the state law as follows:
- San Francisco employers may “front load” paid sick leave.
- Paid sick leave will accrue on commencement of employment (accrual begins on the 90th day of employment under current law).
- The law expands the definition of “parent” to include a person “who stood in loco parentis when the employee was a minor child, and a person who is a biological, adoptive, or foster parent, stepparent, or guardian of the employee’s spouse or registered domestic partner.”
- Employees can use paid sick leave “for purposes related to domestic violence, sexual assault, or stalking … and for purposes related to bone marrow donation or organ donation.”
In contrast to state law, however, an employer may not require employees to use paid sick leave in increments greater than one hour (state law allows for two-hour increments) absent a regulation to that effect from the San Francisco Office of Labor Standards Enforcement.
What This Means for California Employers
While many California employers recently revised their paid sick leave policies to comply with state law, that may not be enough. In addition to the recently enacted or amended ordinances in San Diego, Los Angeles and San Francisco, employers also have to comply with the litany of other local sick leave laws. These local ordinances often contain conflicting requirements that significantly complicate employers’ compliance efforts. Thus, employers should review their existing paid sick leave and/or PTO policies to ensure they remain consistent with the ever-changing paid sick leave laws in every jurisdiction in which they operate. Employers intending to rely upon preexisting PTO or vacation policies to comply with local sick leave ordinances may want to closely review those policies to ensure they do not contain any provisions (regarding use, carryover or accrual) that are inconsistent with the applicable ordinances.