Healthy Workplaces / Healthy Families
Act of 2014
California Labor Code §§ 245 - 249
STACY L. HENDERSON
Attorney at Law
578 N. Wilma Avenue, Suite A
Ripon, CA 95366
Office: (209) 599-5003
Cell: (209) 603-2543
Fax: (209) 599-5008
Web: www.terpstra-law.com
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Starting July 1, 2015, all California employers, regardless of
size, are required to provide paid sick leave for any employee
(part-time, full-time, exempt and non-exempt) who works in
California for 30 or more calendar days within a year (for the
same employer).
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The new law does not interfere with employer practices that are
more generous to employees, but does contain numerous
detailed parameters, which set the minimum requirements for
employers.
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Additional information can be found at:
http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm
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Union - Employees covered by a valid collective bargaining agreement that expressly
provides for:
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Wages, hours of work, and working conditions of employees.
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Paid sick days or a paid leave or paid time off policy that permits the use of sick days
for those employees.
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Final and binding arbitration of disputes concerning application of its paid sick days
provisions.
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Premium wage rates for all overtime hours worked.
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Regular hourly rate of pay of not less than 30% more than the state minimum wage.
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Construction Industry - Employees covered by a valid collective bargaining agreement that
expressly provides for:
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Wages, hours of work, and working conditions of employees.
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Premium wage rates for all overtime hours worked.
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Regular hourly rate of pay of not less than 30% more than the state minimum wage.
*** The agreement must have either:
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Been entered into before January 1, 2015; or
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Expressly waive the requirements of the paid sick leave law in clear and
unambiguous terms.
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IHHS – A provider of in home support services.
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Airlines – Individuals employed by an air carrier as a flight
deck or crew cabin member, provided that the individual is
provided with compensated time off equal to or exceeding
the requirements of the paid sick leave law.
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Retired Annuitants – Retired annuitants of public agency.
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Accrual Method - employers may use any of the following accrual options.
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Employees accrue 1 hour of leave for every 30 hours worked.
For employees who work 40 hours per week, this amounts to 1.33 hours per
week.
Exempt employees are deemed to work 40 hours per workweek unless the
employee’s normal workweek is less than 40 hours, in which case the
employee shall accrue paid sick days based upon that normal workweek.
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Employers may provide for sick leave accrual any other basis provided that the
accrual is on a regular basis and the employee will have 24 hours of accrued sick
leave available by the 120th calendar day of employment, of each calendar year
or in each 12-month period.
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Employers may provide not less than 3 days or 24 hours of paid sick leave that is
available to the employee to use by the completion of his/her 120th calendar day
of employment.
*** Under this method, employees may use accrued leave after 90 calendar days of
employment.
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Lump Sum / Front Load Method
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Employees are given an up-front lump sum of 3 days at the
beginning of the calendar year, anniversary date or rolling 12
month period.
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Employees who work 8 hours per day - 24 hours
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Employees who work 10 hours per day - 30 hours
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Exempt employees – deemed to work 40 hours per week unless
their normal work week is less than 40 hours, in which case,
accrual is based on the number of hours usually worked.
***Under this method, accrued leave is available
for use at the beginning of the year.
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Cap - Employers may cap usage by an employee at
3 days per year.
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The year can be defined as a calendar year,
rolling 12 month period, or 12 month period
based on employee’s anniversary date.
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Minimum Usage - For partial days, employers can
require employees to take at least 2 hours of leave,
but otherwise the determination of how much time is
needed is left to the employee.
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Reasons for Use - Employees can use the paid sick leave for preventive care
or care for an existing health condition of the employee or his/her family
member, or for specified purposes if the employee is a victim of domestic
violence, sexual assault or stalking.
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Family Members – Defined to include the employee’s:
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Biological, adopted, foster or step child, legal ward, or a child to whom the
employee stands in loco parentis (regardless of age or dependency status)
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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
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Spouse or registered domestic partner
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Grandparent
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Grandchild
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Sibling
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Preventive Care – Defined to include annual physicals and flu shots.
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Employee Notice
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Employers must permit employees to use the paid
sick leave upon an oral or written request.
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If the need is foreseeable the employee must give
reasonable advance notice, but where the need is
unforeseeable the employee need only give notice as
soon as practicable.
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Prohibition Against Adverse Action by Employer - Employers shall not
deny an employee the right to use accrued sick days, or discharge, threaten to
discharge, demote, suspend, or in any other manner discriminate against an
employee for using or attempting to use accrued sick days.
There is a rebuttable presumption of unlawful retaliation if an employer
denies an employee the right to use accrued sick days, discharges, threatens to
discharge, demotes, suspends, or in any manner discriminates against an
employee within 30 days of any of the following:
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Requesting or taking leave
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Filing a complaint with the Labor Commissioner
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Alleging a violation
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Cooperating with an investigation or prosecution of an alleged violation
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Opposing a policy, practice, or act that is prohibited
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Prohibition Against Requiring Employee to Find
Coverage – Employers shall not require that the
employee search for or find a replacement worker to
cover the days during which the employee uses paid
sick days.
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Doctor’s Notes ???
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Employers may cap the total accrual of paid sick leave at 6
days
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Employees who work 8 hours per day - 48 hours
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Employees who work 8 hours per day - 60 hours
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If an employee separates and is rehired within 1 year of
separation, all previously accrued and unused paid sick leave
must be reinstated and the employee is entitled to accrue
additional leave upon rehiring, up to the cap established by
the employer.
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This requirement does not apply if the employer paid out
for accrued and unused sick leave when the employee
separated.
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Accrual Method - Accrued and unused sick leave
carries over annually, up to the cap of 6 days,
unless the employer establishes a higher cap.
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Lump Sum Method – Employer is not required to
provide carry over of unused sick leave.
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Rate - Payment for paid sick leave is calculated at the employee’s regular
hourly rate of pay at the time the sick leave is used.
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Non-Exempt Employees - Payment for paid sick leave may be calculated
using any of the following:
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Calculate the regular rate of pay for the workweek in which the
employee uses the paid sick leave, whether or not the employee
actually works overtime in that week.
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Calculate the rate 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.
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Exempt Employees - Payment for paid sick leave shall be calculated in the
same manner as the employee calculates wages for other forms of paid
leave time.
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Time of Payment – Employees must be paid for sick leave no
later than the next regular payroll period after the sick leave
was taken.
No Payment at Separation - Employers are not required to
provide compensation to an employee for accrued and unused
sick leave when an employee separates, regardless of the
reason for separation.
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PTO Exception - Employers with a PTO plan are required
to pay out for accrued and unused PTO at the time of
separation.
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Employers may achieve compliance with a PTO or paid leave policy if the policy:
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Is in writing.
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Provides at least the same amount of hours of leave as required under the paid sick
leave law.
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Permits employees to use the leave for the same purposes and under the same
conditions as permitted under the paid sick leave law.
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Satisfies one of the following requirements:
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Satisfies the accrual, carry over and use requirements of the paid sick leave law.
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Provided paid sick leave or PTO to a class of employees before January 1, 2015
using an accrual method providing for regular accrual of not less than 1 day or 8
hours of leave within 3 months of employment of each calendar year or 12-month
period, and the employee was eligible to earn at least 3 days or 24 hours of leave
within 9 months of employment. If the employer modifies the previous accrual
method, the employer is required to comply with the accrual method set forth in
the paid sick leave law or provide the full amount of leave at the beginning of
each year of employment, calendar year, or 12-month period.
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Employers must comply with both the local
ordinances and the California law.
Where there are differences, the employer must
provide the more generous benefit to employees.
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1. With Paychecks
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Employers must include a sick leave tally on each employee wage
statement, or in a separate writing that is given to each employee
on each pay day.
- Employers who provide unlimited sick leave to employees
may satisfy the notice requirement by indicating “unlimited”
on the employee’s itemized wage statement.
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An employer who intentionally violates this notice requirement
may be required to pay the aggrieved employee(s) the greater of
actual damages or $50 for the initial pay period, $100 per
employee for each violation in a subsequent pay period, up to
$4,000. Aggrieved employee(s) also recover attorney’s fees and
costs.
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2. Poster / January 1, 2015
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Employers are required to post the DLSE’s form
notice, which can be found at:
http://www.dir.ca.gov/dlse/Publications/Paid_
Sick_Days_Poster_Template_(11_2014) .pdf
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An employer who willfully violates the posting
requirement is subject to a civil penalty of up to
$100 per offense.
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3.
Labor Code § 2810.5 Notice / July 8 and Upon Hire of New
Employees
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Employers are required to provide the revised Labor Code §
2810.5 Notice at the time of hire for each employee hired after
January 1, 2015.
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For existing employees, this Notice should be provided by July
8, 2015 to reflect the entitlement to sick leave.
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The Notice can be found at:
http://www.dir.ca.gov/DLSE/LC_2810.5_Notice.pdf
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Employers are required to keep records for at least 3 years
documenting the hours worked and paid sick days accrued
and used by an employee.
Employers are not required to inquire into or record the
purposes for which an employee uses sick leave or paid time
off.
If an employer does not maintain adequate records, it will be
presumed that the employee is entitled to the maximum
number of hours accruable, unless the employer can show
otherwise by clear and convincing evidence.
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Labor Commissioner Orders
• Reinstatement
• Back pay
• Payment of sick days unlawfully withheld
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Administrative Penalties
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Attorney’s fees and Costs
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Interest
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Civil Action
*** Limit on Penalties – An employer shall not be assessed any penalty or liquidated
damages due to an isolated and unintentional payroll error or written notice error
that is a clerical or an inadvertent mistake regarding the accrual or available use of
paid sick leave.
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Select accrual method
Set limitations on usage and accrual
Understand permissible reasons for use of sick leave and
limits on employee notice obligations
Do not retaliate
Pay employees the proper rate
Post DLSE notice
Provide sick leave tally with each paycheck
Provide current Labor Code § 2810.5 Notice
Keep records for 3 years
Call your attorney with any questions
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Revise and Distribute Sick Leave Policy – To the extent
that an employer’s sick leave policy is required to be
modified to comply with the new law, employers should
update the policy and distribute the policy to all
employees.
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Update Handbook – If the employer’s handbook
contains information about its sick leave policy, the
contents should be revised to the extent that the policy is
required to be modified to comply with the new law
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