As the July 1 deadline for employees to begin accruing paid sick leave, employers are wrestling with some of the ambiguitiessick created by the law.  The legislation left many unanswered questions for employers to grapple with.  Some of the more common questions employers have had deal with how to calculate the accrual rate for part-time employees and employees working alternative work schedules (such as a 4 day 10 hour schedule), and how to calculate the amount owed to employees paid by piece rate or commissions when they utilize paid sick leave.  As set forth below, the Department of Industrial Relations (DIR) has attempted to explain some of these issues.

 Accrual Rate For Part-time employees

It is important to note that the law allows employers to limit the employee’s accrual of sick leave to 24 hours or three days.  Therefore, if an employee only works six hours per day, and are sick for three days, they have only used 18 hours of paid sick leave.  The DIR has taken the position in its FAQs that the three day limitation cannot “be used to prohibit a part-time employee from using at least 24 hours of accrued leave in a year.”  Therefore, part-time employees must be allowed at least 24 hours of accrued leave even if this is more than three days off of work, according to the DIR’s interpretation of the statute.

 Accrual Rate For Employees Working Under Alternative Work Schedules

If the employer has taken the proper steps to establish an alternative workweek schedule (such as having employees work four days at 10 hours per day), the employer needs to be aware of some potential issues in calculating the amount of leave available for these employees.  The DIR’s position appears to be that employees working a 4-10 schedule actually accrue, and can take, 30 hours of paid sick leave, not 24 hours.  The DIR states that the “minimum requirements of the statute are 3 days or 24 hours” and therefore the employee working a 4-10 schedule is entitled to 30 hours of paid sick leave.

 Calculating Amount Owed For Piece Rate, Commissioned Based Or Other Employees With Fluctuating Pay

In order to determine how much the employer must pay the employee during sick leave, the employer must calculate the employee’s regular rate of pay.  If the employee’s pay fluctuates, such as being paid commissions or by piece rate, the employee’s regular rate of pay is calculated by dividing their total compensation for the previous 90 days by the number of hours worked.  The DIR provides the following example:

If an employee is paid commission or piece rate, then divide total compensation for previous 90 calendar days by number of hours worked and pay this rate. Employee was paid a piece rate of $0.36 per square foot for 16,500 square feet during 400 hours of work in a 90 day period. He earned $5,940:

•His hourly rate for paid sick leave is $5,940 ÷ 400 hours = $14.85 per hour

Employee is paid on commissions only. In a 90 day period, she worked 480 hours and earned $9,000:

•Her hourly rate for paid sick leave is $9000 ÷ 480 hours = $18.75 per hour

Photo: Alexandre Normand