California’s Paid Sick Leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015. While employer have been subject to the law for over four years, there are still some questions that employers have about their obligations. Below are five questions that are still routinely asked by employers.
1. Can an employer’s attendance policies violate the law?
Yes. Employers need to review attendance policies to ensure that the policy does not violate California’s paid sick leave (PSL) requirements. Many attendance policies discipline employees for an unscheduled absence or if the employee does not provide advanced notice prior to an absence. Under the terms of the paid sick leave law, if an employee has accrued and available sick leave, and is accrued paid sick leave for a purpose permitted under the law, an employer cannot discipline the employee for the leave. This is considered a form of discipline against the employee for using his or her paid sick leave as allowed under the paid sick leave law.
However, it is important to note, as California’s Department of Industrial Relations (DIR) states in its frequently asked questions, the paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes. It “protects” only an employee’s accrued and available paid sick leave as specified in the statute.
2. Can employees take a vacation day and ask for it to be a paid sick leave?
No. An employer is not required to allow an employee to use accrued paid sick days for reasons other than those listed in the statute, which are:
(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the 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.
(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
(Lab. Code § 246, subd. (l).)
3. Can employers require doctor’s notes from employees who take paid sick leave?
California’s Paid Sick Leave law does not address if an employer may require employees to provide a doctor’s note in order to take paid sick leave. The DIR’s frequently asked questions also do not address this specific question, and only provides the following guidance about the required notice an employee must provide to take PSL:
The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.
4. How much will employees be paid for sick leave?
As the DIR sets forth, to determine the rate of pay, the employer may either:
- Calculate an employee’s regular, non-overtime rate of pay for the workweek in which he or she used paid sick leave, whether or not he or she actually worked overtime in that workweek (in general terms, this is usually done by dividing your total non- overtime compensation by the total non-overtime hours worked), or
- Divide the employee’s total compensation for the previous 90 days (excluding overtime premium pay) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment. Employers need to be careful about how to calculate the regular rate of pay for commissioned employees for paid sick leave purposes also.
For exempt employees, paid sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time, such as for vacation pay, paid-time off, etc….
5. If the employer has employees in a city with a local paid sick leave law, which law applies?
Employers must comply with all leave laws that apply to their business, and must provide the most generous provisions of each leave law. For example, in Southern California, the following local governments have paid sick leave requirements: