With the enactment of the Healthy Workplaces, Healthy Families Act of 2014 (AB1522), California has become the second state in the nation, after Connecticut, to mandate employers provide their employees, including part-time and temporary workers, paid sick leave.
The Act, signed by Governor Jerry Brown on September 10, 2014, requires that employers, public or private and regardless of size, permit employees to accrue paid sick time at the rate of at least one hour for every 30 hours worked. An employee is entitled to accrue sick leave if the individual works, in California, for at least 30 days within a year from the commencement of employment starting July 1, 2015. An employer is permitted to limit an employee’s use of paid sick leave to 24 hours or three days in each year. Any accrued, unused sick leave beyond the 24 hours or any unused, accrued sick leave must carry over from year to year. Employees can use accrued sick days beginning on the 90th day of employment.
Employees working under a valid collective bargaining agreement that provides for similar paid sick time and who earn 30 percent more than the state minimum wage, among other terms of employment, are not covered by the Act. Also not covered by the Act are employees in the construction industry covered by a valid collective bargaining agreement, with similar required terms of employment as above including a regularly hourly rate of pay of not less than 30 percent more than the state minimum wage, entered into before January 1, 2015, or an employer in the construction industry which negotiates a collective bargaining agreement that expressly waives the requirements of the Act. The Act also exempts other classes of employees including providers of in-home supportive services (as defined by the state Welfare and Institutions Code) and certain flight deck or cabin crew members of air carriers subject to the federal Railway Labor Act.
Key provisions of the new state law include:
- Employees, who work in California for more than 30 days in a year after July 1, 2015, are eligible to accrue sick days under the Act. This could mean that employees who live outside of California, but who travel into California and perform work for more than 30 days in a year, could be eligible under the Act.
- Accrued paid sick days will carry over to the following year, but the employer may limit the use of paid sick days to 24 hours or three days in each year of employment.
- The Act seems to distinguish between limiting the use of sick days in a year from the accrual of sick days. As a result, employees’ accrued, unused sick leave beyond the 24 hours or any unused, accrued sick leave must carry over from year to year.
- An employer is not required to compensate an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
- An employer has the option of limiting employees’ total accrual of paid sick leave to 48 hours or six days, provided the employees’ rights to accrue and use paid sick leave are not “otherwise limited.”
- An employer is not required to provide additional sick days under the Act if it has a paid leave policy or paid time off policy which provides paid time off for the same purpose of the Act and under the same conditions and does either of the following: (1) satisfies the Act’s accrual, carry over and use requirements; or (2) provides for no less than 24 hours or three days of paid sick leave/paid time off each year or 12- month period.
- An employee can use accrued sick time for the diagnosis, care or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member. Family member is defined more broadly than the definition of Kin Care Leave at Labor Code 233. Under the Act, “Family member” means any of the following:
- A child, which means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of the child’s age or dependency status.
- A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
- A spouse.
- A registered domestic partner.
- A grandparent.
- A grandchild.
- A sibling.
- Sick time can be used by an employee who is a victim of domestic violence, sexual assault or stalking for certain purposes.
- The employee must provide reasonable advance notice if the need to use paid sick leave is foreseeable. If not foreseeable, the employee must provide notice as soon as practicable.
- An employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
- An employer must provide an employee with written notice, on the itemized wage statement or in a separate writing, of the amount of paid sick leave available.
- An employer must display a poster about the Act that the Labor Commissioner will provide. A willful violation of the posting requirement will subject the employer to a civil penalty of not more than $100 for each offense.
- An employer must keep for at least three years records documenting the hours worked and paid sick days accrued and used by the employee.
- The Act also amends Labor Code 2810.5 dealing with the Wage Theft Prevention Act Notice. Thus, employers must update their Wage Theft Prevention Act Notice form used upon hire for non-exempt employees and during employment when certain changes occur.
The Act prohibits an employer from denying an employee the right to use accrued sick days, discharging, threatening to discharge, demoting, suspending, or otherwise discriminating against the employee for using or attempting to use accrued sick days or filing a complaint alleging a violation of the Act, cooperating in an investigation or prosecution of an alleged violation of the Act, or opposing a policy, practice or act prohibited by the Act. Employers with no fault attendance policies may consider revising such policies in light of this new law. We recommend sick days protected under the Act should not be counted as an unexcused absence under a no fault attendance policy.
The Act subjects an employer to a rebuttable presumption of unlawful retaliation if the employee was denied the right to use accrued sick days, discharged, threatened with discharge, demoted, suspended, or otherwise discriminated against within 30 days of the employee’s filing a complaint with the Labor Commission or alleging a violation or cooperating in an investigation or prosecution of an alleged violation of the Act, or opposing a policy, practice or act prohibited by the Act.
The Labor Commissioner enforces the requirements of the Act and may order appropriate relief (including reinstatement, backpay, payment of sick days unlawfully withheld and administrative penalties) for violations. The Act contains a broad range of harsh penalties for violations, including but not limited to certain penalties up to $4,000, in addition to remuneration for the paid sick days denied. The Labor Commissioner or the Attorney General may bring a civil action on behalf of an aggrieved worker against anyone who violates the Act.
It is important that employers review their policies and handbooks in light of the new Act. Employers must also review their leave management procedures and examine how the new sick time requirements impact California’s current maze of leave laws. For additional information regarding the new California law, please contact Jonathan A. Siegel, at SiegelJ@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.