A “rebuttable presumption” means that the Labor Commissioner or a court will assume that the employer violated the law unless the employer can come up with evidence to prove otherwise. If the employer does not provide any contrary evidence, it will be found to have violated the law.

• Employers should not discriminate or retaliate against employees who ask about the PSL law or assert their rights to use PSL.

PSL and Employer Attendance Policies

You cannot, in general, discipline an employee for taking a paid sick day or using paid sick leave for part of a day when the employee has accrued protected paid sick leave available.

No-fault attendance policies, where discipline is automatic after a certain number of absences or a certain number of days of reporting to work late, should not count time taken off as PSL when the employee has accrued and available sick leave.

The Labor Commissioner has issued answers to Frequently Asked Questions that specifically address the issue of PSL and attendance policies.

As the Labor Commissioner notes, many employers have attendance policies that give employees an “occurrence” or other adverse personnel action if an employee has an unscheduled absence or provides insufficient notice of an absence.

Do not count protected PSL absences (or other protected absences) when determining whether an employee violated your absence control policy. If the employee has accrued and available PSL, and is using the PSL for a purposes allowed under the law, you cannot give the employee an “occurrence” for the absence under the attendance policy.

However, if the employee does not have accrued or available PSL (e.g., the employee has already used all of their PSL) and the employee has an unscheduled absence, the PSL law does not prohibit you from giving the employee an “occurrence” for this absence if the absences violates your policy. You can give an occurrence “even if the employee was actually sick and/or could have used PSL for the absence if he or she had any such accrued leave available.”

The PSL law doesn’t protect all time off taken for illness or other related purpose, it only protects time that an employee has accrued and available under the mandatory PSL law.

Moreover, if the employee’s absence is for a reason not covered under the PSL law, you are not required to allow the employee to use PSL for that absence and can give an “occurrence” for such absence if it violates your policy. For more information on permissible reasons for PSL, see Permissible Usage.

Finally, if an employee elects to use accrued PSL for only part of his/her unscheduled absence, you are allowed to give an occurrence for the part of the day in which no PSL was used.

Example: Mary has an unscheduled absence for a full eight-hour workday, but chooses to use only four hours of accrued PSL for the absence (which, according to the Labor Commissioner, she is allowed to do). In this situation, you could give an “occurrence” (or half an occurrence) for the four hours of unscheduled absence for which no PSL was used.

1. Lab. Code secs. 245-249