Paid Sick Leave in California

California is one of 10 states, along with the District of Columbia, that have enacted laws requiring employers to offer their workers paid sick leave. After Connecticut enacted its Paid Sick Leave Act in 2011, California was the second state to codify laws governing the accrual and calculation of paid sick leave for workers within its borders. That legislation was first enacted in 2014 and amended in 2015, setting out specific calculation methods for the accrual and compensation rates for employees, as well as eligibility requirements and enforcement provisions.

As no federal statutes require employers to pay employees for sick leave taken in the course of their employment, states are left to create and implement their own regulatory schemes for paid leave. This state-by-state approach began to take shape with Connecticut, which passed its Paid Sick Leave Act in 2011.

In 2014, the California legislature followed suit with the creation and enactment of AB 1522, the Healthy Workplaces Healthy Families Act, or HWHF Act. Governor Jerry Brown signed the act into law on September 10, 2014. This law made the provision of sick leave with pay mandatory throughout the state as long as sufficient paid time has accrued to the employee’s account.

The HWHF Act provides for a basic amount of sick leave that must be paid by the employer to any eligible employee who needs time off for medical reasons. Those reasons include a wide range of issues addressing acute or chronic medical conditions. The employee may take sick leave to care for himself or a family member, as defined by the Act.

In 2015, legislation was introduced to clarify some key elements of the new provisions of the HWHF Act. Specifically, the amendments addressed:

• The manner in which accrual of paid sick leave is to be calculated.
• How employers should calculate the rate at which employees are compensated for sick leave.
• Certain record-keeping requirements for employers.

This legislation also provides for the calculation of paid sick leave by employers using different methods for nonexempt and exempt employees.

State law AB 304 also included provisions that essentially grandfathered in earlier adopted policies. The amendment permitted employers to keep in place policies that incorporate a different accrual method from the one hour for each 30 hours worked standard previously mandated in AB 1522, as long as the employer provides at least as much leave as would be required by that law alone.

Employers who implemented such policies prior to the start of the 2015 calendar year may continue using their accrual methods, even though they differ from the law’s requirements. However, the employer’s policies must meet certain conditions to qualify for this grandfathered status:

The policy must grant to employees eight hours of paid sick leave, or PTO, within three months of employment for each calendar year, and 24 hours of PTO within nine months of initial employment. Accrual has to take place on a consistent calendar basis.

Other provisions of the HWHF Act must be met, such as who is considered a family member and what records must be kept by the employer, including notice requirements.

The HWHF Act states that any employee who has worked at least 30 days in the prior 12 months is eligible for the accrual of paid sick leave. This rule applies to most employees, including full-time and part-time workers. Even temporary employees are eligible, assuming they meet the 30-day provision.

One of the primary purposes of AB 304 was to clarify this provision. Initially, the wording of the HWHF Act led some to conclude that eligibility extended to any worker who had worked for any employer, or more than one employer, as long as that employment lasted at least 30 days and took place in California.

The amendment in 2015 clarified that eligibility was restricted to employment for the same employer within that prior year. In other words, an employee who worked 15 days for Employer A and 15 days for Employer B within the past year would not be eligible for the accrual of paid sick leave from either employer.

The law does provide some restrictions for some workers, such as those operating under a collective bargaining agreement where that agreement governs paid sick leave eligibility, in-home service providers and certain air carrier workers.

Read More: What is California's Sick Leave Law

Under the California legislative scheme, eligible employees may take paid sick leave to recover from their own illnesses or injuries. They may also take paid sick leave for the purpose of caring for a family member. Family members include children, including foster and adopted children; spouses and registered domestic partners; parents; siblings; grandchildren; and grandparents.

Leave may be taken for a number of care-related purposes. For example, you can take leave to seek a diagnosis, to receive medical treatment, to recover from medical procedures or from the illness itself, or to engage in a preventive treatment plan.

When a worker leaves employment with the employer but then gets rehired within the crucial 12-month period, the employer must reinstate the worker’s right to accrued sick leave. However, workers who are terminated from employment are often compensated for accrued paid time off or paid sick leave that has accrued to the employee’s credit. If this happens, then the worker is not allowed to reinstate that accrued time, since the employer has already fulfilled its obligations to pay for that time.

Thus, the rule regarding reinstatement of accrual rights for rehired workers only applies when the worker has not already been paid for that accrued leave.

Among its other provisions, AB 304 provides for three methods that can be used by employers to calculate paid sick leave. Which method is used depends on whether the employee is exempt or nonexempt.

Exempt employees receive sick leave pay that is calculated using the same method the employer uses to calculate pay for any other type of paid time off, such as paid vacation leave.

By contrast, nonexempt employees are usually paid on an hourly wage basis. For these workers, employers have a few choices. First, they can use the worker’s regular pay rate for the week in which the worker takes paid leave, regardless of whether the worker works overtime that week. Or alternatively, nonexempt workers may be paid using a method based on total wages, excluding overtime rates, divided by hours worked for the 90 days before the paid sick leave period begins.

At a minimum, workers are generally entitled to three days of paid sick leave for each 12-month period of employment. Workers can carry over unused paid sick leave to the next year. Employees may begin taking leave on the 90th day of their employment.

If employers fail to recognize and grant a worker’s rights to paid sick leave under California laws, the worker can file a civil lawsuit in the appropriate court to protect and obtain those rights. Workers may sue for failure to provide paid sick leave to which they’re entitled under the law, either in whole or in part, or for failure to pay the worker when using the accrued sick leave.

In addition, employers may not retaliate against any worker who exercises the right to paid sick leave or who makes a complaint or participates in an investigation of a labor violation under the paid sick leave laws. Unlawful retaliatory acts include termination, discipline, a reduction in pay or any threats to fire the worker or report the worker to U.S. Immigration and Customs Enforcement.

In the event that a labor violation investigation or civil lawsuit results in a finding that the employer violated state laws on paid sick leave, the employer may be liable for the employee’s attorney's fees and other court costs, in addition to damages.

Finally, if the employer routinely, or as a matter of policy, violates the paid sick leave laws for multiple workers, those workers may band together to file a class action lawsuit against the employer.

If a worker’s rights to paid sick leave are violated, and the worker files a civil lawsuit, she is entitled to seek monetary damages as well as equitable relief. Damages in a paid sick leave case, just as with damages for most civil cases, are designed to put the plaintiff – the employee – in the position they'd otherwise be in, had the employer not acted wrongfully.

Monetary damages for any labor law violation in California include back pay, sick leave pay, attorney’s fees and court costs, and interest on any pay that has been withheld. In addition, successful plaintiffs are entitled to treble liquidated damages for sick days that were wrongfully withheld by the employer up to $4,000.

Beyond the obligation to calculate accrued paid sick leave accurately using one of the permitted calculation methods, and the obligation to pay employees according to their accrued sick leave, California laws place additional obligations on employers that help ensure the proper administration of the state's paid sick leave policies.

One key aspect of those obligations is the employer’s duty to create and maintain proper records for paid sick time. Companies must include both the accrual of paid sick time and its compensation to employees, as well as records of the hours the employees actually worked. Each employer must maintain those records for at least three years.

In addition to state laws on the subject, California municipalities and counties may also enact paid sick leave ordinances with different mandates. The state legislation on paid sick leave permits this local home rule allowance as long as it does not attempt to weaken or lessen the protections offered employees under the HWHF Act, as amended.

Local regulations may address issues that are unaddressed in the state law. For example, in some municipal ordinances, such as those in Los Angeles, Oakland, San Diego and San Francisco, employers are permitted to request documentation for work absences of four consecutive workdays or more.

Ordinances may likewise offer additional options that the state scheme does not mention. For instance, the local California ordinances all offer some additional accrual methods that employers may choose to utilize.

In San Francisco, employers may grant the to-be-accrued leave days in one lump sum, attributed to the employee’s usage, at the beginning of the calendar year or any 12-month period, or on the employee’s start-date anniversary. Other local ordinances allow for this so-called front-loading of a specific number of hours at the start of the year – 40 or 48 hours – depending on the location. Others provide an accrual cap requirement, which the front-loaded days must equal.