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by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
The Healthy Workplaces, Healthy Families Act — California’s paid sick leave (PSL) law — is 10 years old this year!
California’s paid sick leave law, which went into effect in July 2015, requires employers to provide employees working in California up to five days or 40 hours of PSL, whichever is greater, annually. Employers have options for how they can provide the time, but they must follow certain requirements when doing so. Importantly, PSL is protected time off, meaning employees have the right to use it and cannot be disciplined, terminated or otherwise subjected to adverse action for doing so.
Despite being a mainstay of California employment law for the last decade, the law continues to present issues and compliance challenges for employers, and PSL remains a popular topic at CalChamber seminars and on the Labor Law Helpline. Here are ten frequently asked questions about the law and how to comply with it.
The short answer to this, the most commonly asked PSL question, is no.
If employees are using PSL, employers generally cannot request a doctor’s note. That is because PSL is protected time off, and employees have the right to use it upon their request — no provision in the PSL law enables an employer to require medical certification to support the request.
If employers have a policy requiring a doctor’s note after a certain number of absences, such a policy must exclude absences for which employees use PSL; in other words, the policy cannot apply unless and until the employee has exhausted available PSL. Once PSL has been exhausted, however, employers may require medical certification.
Yes, employers decide how to provide PSL to employees and can choose to use a different method for full-time and part-time employees. Employers have options for providing PSL:
Employers can use different methods for full-time and part-time employees — and for some employers, that is preferable. For example, an employer may want to provide its full-time employees with PSL using the lump-sum method. If the employer also has part-time or seasonal employees, it may not want to provide those employees with the full amount of PSL up front because the employees may only work a few hours each week or work for a brief period of time. In that case, the employer could provide PSL to those employees using the accrual method.
Yes, but those limits must meet certain minimum requirements.
Under the accrual method, employees continually earn PSL as they work, and any accrued but unused time must carry over from year to year. For example, if an employer is using the statutory accrual method, which is one hour of PSL for every 30 hours worked (“1:30”), a full-time employee working 40 hours a week will accrue approximately 69 hours in a year and that time will carry over to the next year if not used. (Employers can use an alternative accrual rate as long as it meets certain benchmarks.)
If an employer wants to limit how much PSL an employee can accrue, it can use an accrual cap. An accrual cap stops employees from accruing PSL once they have a certain amount of accrued time in their PSL bank. Employers can also limit the amount of PSL employees can use in a 12-month period.
To be lawful, an accrual cap cannot be less than 10 days or 80 hours, and a limit on use cannot be less than five days or 40 hours. Going back to the example of the full-time employee earning PSL under the statutory accrual method, if the employer had a 10-day/80-hour accrual cap, the employee would continually accrue PSL until they reach that cap, at which time accrual would stop until they use PSL and fall below the cap. The employer could also have a limit on use of no less than five days or 40 hours, which means the employee can only use that much time in a 12-month period — even if they have additional time in their PSL bank. Once they hit the use limit, the employee will continue to accrue time but not be able to use additional time until the start of the next 12-month period.
Employers wanting to use an accrual cap and/or limit on use should clearly state that in their PSL policy.
No, this is not a problem. Under the accrual method, the amount of time an employee will earn over the course of a year will vary depending on how many hours they work; for example, a part-time employee who works 20 hours a week will accrue approximately 35 hours in a year using the statutory accrual method. As long as the employer is using an accrual rate that meets the requirements of the PSL law, they are in compliance — even if part-time employees accrue less than 40 hours in a year.
The PSL law requires that employers provide a minimum of five days or 40 hours of PSL per year, whichever is greater. If employees work eight-hour shifts, five days and 40 hours of PSL is the same. However, when employees work something other than an eight-hour shift, employers need to ensure that the employees receive “whichever is greater” of five days or 40 hours, given the length of the shifts they work.
For instance, if employees work six-hour shifts, five days of PSL would equal only 30 hours — so those employees must receive 40 hours of PSL (which is approximately 6.5 days of six-hour shifts). If employees work 10-hour shifts, 40 hours would equal only four days of PSL — so those employees must receive five days of PSL (which equals 50 hours). In both examples, employees receive whichever is the greater of 40 hours or five days of PSL depending on the shifts they typically work.
No, under the lump-sum method, all employees must receive at least five days or 40 hours of PSL, whichever is greater. Employers cannot prorate that amount for part-time employees.
Yes, an employee can call out and state that they do not want to use PSL — but if they do, their absence is not protected by the PSL law. The employer can treat the absence as unexcused and discipline the employee under the employer’s attendance policy.
It can be a problem. While employers can condition holiday pay on employees not being absent the day before or after a holiday, the policy must carve out protected absences, including absences for PSL. For instance, if an employee calls out the day before a holiday and uses PSL, the employer cannot deny holiday pay. If an employee calls out the day before the holiday and does not use PSL (or any other protected leave), the employer can enforce the policy and deny holiday pay. Employers with this type of policy should ensure that it clearly excludes protected absences.
No, the PSL law does not require employers to pay out PSL at termination.
Some employers choose to meet their obligation to provide PSL through an all-inclusive paid time off (PTO) policy, which provides employees with time off to use for vacation, sick leave and personal reasons. PTO policies are subject to the same requirements as vacation policies, which include that all accrued and unused PTO must be paid out when employment ends. Thus, if an employer provides PSL through a PTO policy, all accrued and unused PTO must be paid out at termination.
The answer to this question depends on whether an employer uses the accrual or lump-sum method to provide PSL.
Under the accrual method, employers must reinstate PSL when an employee is rehired within 12 months; any accrued PSL they had at the time their employment ended must be reinstated. For example, if an employee had 30 hours of accrued PSL at the time their employment ended, and they are rehired within 12 months, they would receive the 30 hours upon rehire. If an employee is rehired after more than 12 months, their PSL is not reinstated.
There is no reinstatement under the lump-sum method. Rather, if an employee is rehired — at any time — they must receive the full lump sum of PSL at the time of rehire.
If an employer provides PSL through a PTO policy, there is no reinstatement at rehire because the PTO would have been paid out when the employment ended.
Want to learn more about how to comply with California’s PSL law? Check out Paid Sick Leave (PSL) on HRCalifornia. Don’t have a California Paid Sick Leave policy in your handbook? Our Employee Handbook Creator can help!