California law provides mandatory paid sick leave under the Healthy Workplaces, Healthy Families Act (the state law). You are required to comply with both the ordinance and the state law.

• Effective January 1, 2024, the state law overrides the following provisions in any local paid sick leave ordinance that is contrary to the state law:

• No requirement to pay out unused sick leave balances upon termination;
• Reinstatement of unused balances for employees rehired within a year;
• Employers’ ability to choose to advance paid sick leave prior to accrual;
• The requirement to set forth available balances on an employee’s wage statement or other writing accompanying the employee’s paycheck;
• The rate of pay at which paid sick leave must be paid;
• Requirements for notice for foreseeable and unforeseeable usage of paid sick leave;
• Timing of payment of paid sick leave when used.1

Otherwise, when the two laws differ, you must follow whichever is more generous to employees.

The ordinance establishes minimum requirements pertaining to ESL. You may provide more generous leave than the ordinance requires.

You can find more information regarding the ordinance at the city's Minimum Wage Ordinance Web page. You can also contact the city at (510) 596-4316 or minwage@emeryville.org.

Employers Covered Under the Paid Sick Leave Ordinance

The ordinance applies to all employers, regardless of size. The ordinance applies to public and private employers and for-profit and not-for-profit companies.

"Employer" is defined by the ordinance as: "any person (including a natural person, corporation, nonprofit corporation, general partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign), who directly or indirectly (including through the services of a temporary services or staffing agency or similar entity) employs or exercises control over the wages, hours or working conditions of any employee.”2

If you already have a paid leave policy that makes the same amount of paid leave available and that can be used for the same purposes as ESL, you are not required to provide additional paid sick leave.

Employees Entitled to the Benefit

A covered employee (employee) under the ordinance is any employee who works at least two hours in one calendar week (i.e., a period of seven consecutive days, starting on Sunday), within the geographic boundaries of the city and who is entitled to minimum wage under California state law.3 Part-time, full-time and temporary employees are also covered. The city has stated that exempt employees under California law, such as executive, administrative and professional employees and outside salespeople are covered the ordinance. Exempt employees are covered by the state law. The ordinance includes “learners” as defined by California law. 4

The ordinance does not apply to employees covered by a bona fide collective bargaining agreement if the ordinance requirements are expressly waived in clear and unambiguous terms.5

• The state law has different rules regarding employees covered by a collective bargaining including a requirement that employees will need to be afforded certain rights under the state law. For more information on how to treat employees with collective bargaining agreements under the state law, see the HR Library’s Employees Entitled to the Benefit page.

The ordinance does not change your obligation to comply with a contract, collective bargaining agreement, employment benefit plan, or other agreement that provides more generous sick leave to employees than required by the ordinance.

Calculating Leave — Employer Options

The ordinance offers you different options to provide ESL. The following are the three basic approaches, which are further described below:

• Accrual of ESL at a specific rate (the "accrual method");
• Provide the full allotment of ESL at the beginning of the year (the "lump-sum method"); or
• A combination of the accrual method and the lump-sum method (the "combination method").6

You may use different methods for different classifications of employees. For instance, you may use the accrual method for part-time employees and the lump-sum method for full-time employees, or vice versa.

Accrual Method

Under the accrual method, an employee working in Emeryville accrues ESL at no less than the rate required by the state law, (one hour for every 30 hours worked), subject to any accrual cap.7 For more information, see "Cap on Accrual" on this page.

The following important conditions apply to the accrual method:

• Employees begin to accrue ESL on their first day of employment, and may begin using it no later than their 90th day of employment.8
• Employees accrue ESL on all hours worked in Emeryville, including overtime hours. To comply with both the ordinance and the state law, employees must accrue sick leave on every hour worked, regardless of location.
• Any unused, accrued ESL must carry over to the following year of employment. 9 However, you may cap the employee’s total accrued ESL. For more information, see "Cap on Accrual" on this page.

Lump-Sum Method

The lump-sum method allows you to avoid the accrual and carryover provisions by having a policy that provides sick leave in a “lump sum.” Here, you grant the full amount of ESL at the time of hire, and annually thereafter at the beginning of each year of employment, calendar year or 12-month period.10 Employers utilizing the lump-sum method are not required to carryover unused balances from year-to-year.

• Small businesses (businesses with 55 or fewer employees within the Emeryville city limits) must provide a lump sum of at least 48 hours of ESL.
• Large businesses with more than 55 employees in Emeryville must provide a lump sum of at least 72 hours of ESL.

You can choose a more generous lump-sum if desired.

The following important conditions apply to the lump-sum method:

• You must provide ESL at the beginning of each year of employment, calendar year or 12-month period. For example, if you provided 72 hours on July 1, 2023, you would need to provide another 72 hours on July 1, 2024.
• You must make the entire lump sum available to the employee at one time.

Unlike the accrual method, with the lump-sum method, an employee will be able to use the lump sum as soon as it is available (i.e., no later than the 90th day of employment).

• The state law requires employers who use the lump-sum method to provide at least 40 hours or five days of paid sick leave, whichever is more. If you are a small business as defined above and have employees whose regular workday includes more than eight hours, their lump-sum amount may need to be higher to ensure that it is no less than the equivalent of five of the employees’ workdays.

You can choose a more generous lump-sum if desired.

"Combination" Method

The combination method allows you to provide a lump sum that is less than the applicable minimum required by the lump-sum method at the beginning of each year of employment, calendar year or 12-month period, Then, you also allow the employee to accrue ESL at the rate specified under the accrual method. The total ESL will be subject to any applicable accrual cap.11

Although the ordinance permits the combination method, state law does not expressly allow the “combination method.” Employers wishing to use the “combination” method should consult with legal counsel to ensure that their sick leave policy complies with both the ordinance and the state law.

Cap on Accrual

Unused, accrued ESL carries over from year to year. Unless you want to allow an employee to accrue unlimited ESL, you should consider placing a cap on the maximum amount on ESL that can be accrued. Any cap on accrual should be in writing and communicated to employees.

The ordinance states that the total amount of accrued ESL an employee carries over from year to year is limited to the following caps. The city has stated that employers may cap accrual at or above these amounts:12

• Small businesses (businesses with 55 or fewer employees in Emeryville) may cap an employee’s total accrual at 48 hours.
• Businesses with more than 55 employees in Emeryville may cap an employee’s total accrual at 72 hours.

• Effective January 1, 2024, the state law requires employers to allow employees to accrue up to 80 hours or 10 days of paid sick leave, whichever is greater. In order to provide the more generous provision, employers can no longer utilize the ESL accrual caps.

You may choose a more generous cap if desired.

The accrual cap is a “floating” cap, not an annual cap. Whenever an employee’s accrued ESL drops below the accrual cap due to usage, the employee begins to accrue ESL again at the rate of one hour for every 30 hours worked.

Permissible Usage

Employees must be allowed to use ESL for any of the following reasons:13

• When an employee is ill or injured, or for the purpose of receiving medical care, treatment, or diagnosis; or
• To aid or care for a covered family member, as defined below, who is ill or injured or receiving medical care, treatment or diagnosis; or
• To aid or care for a guide dog, signal dog, or service dog of the employee or a covered family member.
• The city has stated that ESL may also be used to obtain domestic violence services, including medical and psychological treatment, social services, relocation, legal assistance, and other actions to protect the employee from ongoing domestic violence consistent with the state law.
14

The ordinance allows employees to use ESL for some purposes not covered by the state law, such as for purposes related to care for a guide dog. Conversely, the state law allows employees to use sick leave for reasons not covered in the ordinance, such as jury duty or witness leave, and for certain purposes when an employee or covered family member is the victim of crime or abuse. 

To comply with both laws, you must allow employees to use their ESL for all the purposes identified by both laws. For more information about the purposes for which an individual may use sick leave under state law, see the HR Library's Paid Sick Leave page.

For purposes of ESL, a covered "family member" includes:15

• A child, defined as a biological, foster or adopted child; a stepchild; or a legal ward, regardless of the age or dependency status of the child. “Child” also includes a child to whom the employee acts as a parent, even if the child is not the employee’s legal child;
• A parent, defined as a biological, foster or adoptive parent; a stepparent; or a legal guardian. “Parent” also includes a person who is a biological, foster or adoptive parent, stepparent or legal guardian of the employee’s spouse or registered domestic partner; or a person who acted as the employee’s parent when the employee was a minor, even if the person is not the employee’s legal parent;
• A sibling;
• A grandparent;
• A grandchild;
• A spouse;
• A registered domestic partner; or
• A designated person the employee names in advance on a form provided for this purpose, if the employee does not have a spouse or registered domestic partner.
  • Within 30 calendar days after ESL begins to accrue, employees must be given a window of 14 calendar days to make the designation. Employees must be provided an annual opportunity by January 31st to change the designation, with a window of 14 calendar days to do so.

The state law allows employees to use paid sick leave to care for a “designated person,” which is more broadly defined than the ESL and can be any person identified by the employee at the time the employee requests sick leave. Additionally, the ESL allows employees to use sick leave for some family members not covered by State law, such as a guide, signal, or service dog. To comply with both laws in a single policy, you must allow employees to use their sick leave for the family members identified by both laws.

For more information about a “designated person” under the state law, see Permissible Usage.

An employee may use the full amount of available ESL for a covered family member, the employee’s designated person, or the guide dog, signal dog or service dog of the employee, a covered family member or designated person.

Parameters of Emeryville Sick Leave Use

There are important points regarding how employees may use ESL:16

• Unlike the state law, which allows you to limit an employee’s use of accrued sick leave to 40 hours or five days per year, the ordinance does not allow you to limit an employee’s use of ESL to anything less than the amount of ESL the employee has accrued.
• The ordinance allows you to require employees to give “reasonable” notice of an absence. However, the state law overrides the ESL on employee notice to the extent it is contrary. Under state law, employers may require employees to provide “reasonable advanced notice” if the paid sick leave is planned and allow an employee to provide notice “as soon as is practicable” when advance notice is not possible, such as in emergencies.
• The ordinance states that you cannot require employees to take ESL in increments of more than two hours. However, to comply with the state law, you should allow employees to take ESL in an initial minimum increment of no more than two hours and then as determined necessary by the employee (for example, an additional 15 minutes).
• You cannot require an employee to find a replacement worker to cover the hours during which the employee will be using ESL.
• To comply with the state law, you cannot require an employee to provide medical documentation to substantiate the need for leave.

Paying Employees for Emeryville Sick Leave

You may use any of the following methods to calculate how to compensate employees for ESL:17

• Calculate ESL for nonexempt employees in the same manner as you calculate the “regular rate of pay” for the workweek in which the employee uses ESL, regardless of whether the employee actually works overtime in that workweek;
• Calculate ESL for nonexempt employees 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; or
• Calculate ESL for exempt employees in the same manner as wages are calculated for other forms of paid leave time.

The city has stated that, where an employee has two different jobs for the same employer at the different pay rates, or a fluctuating rate of pay, ESL must be paid at the scheduled rate of pay for the job during which the ESL is taken.18 However, state law overrides the ESL in this regard. Employers must only utilize one of the options described above.

For information on how to calculate the regular rate of pay, see “Regular Rate of Pay Defined” on the HR Library's Calculating Overtime page. No matter which method you choose, you must pay employees no later than the payday for the next regular payroll period after the ESL was taken.19

Employee Separation and Reinstatement

Unlike accrued, unused vacation or paid time off (PTO) – which is treated like wages – ESL does not need to be paid out to the employee upon separation of employment (i.e., there is no requirement to “cash-out” ESL at termination, resignation, retirement or other separation from employment).20

Unlike the state law, the ordinance does not address reinstatement of ESL when you rehire employees after a period of separation. To comply with both laws, you must reinstate any previously accrued, unused ESL that was not paid out at separation if an employee is rehired within one year. Upon rehire, the employee must be allowed to use the reinstated ESL and begin accruing additional ESL.

You can find additional information regarding application of the ESL in a Frequently Asked Questions document.

Posting, Notice and Recordkeeping Requirements

The ordinance contains posting, notice and recordkeeping requirements. You will need to pay close attention to these obligations.

Posting and Notice

The ordinance requires you to provide written notification to all employees of their rights.21 Additionally, the notification must be posted prominently at the work site where it will be seen by employees. The notice must be in all languages spoken by 10 percent or more of your employees at a location.22

The current Emeryville Paid Sick Leave Official Notice is in CalChamber's Emeryville Labor Law Posters.

• Emeryville Labor Law Poster

The state law also requires you to display a Healthy Workplaces/Healthy Families Act of 2014 Paid Sick Leave notice. This notice is part of CalChamber's California and Federal Labor Law Posters.

• California and Federal Labor Law Posters

New Employees

In addition to the posting requirements, at the time of hire, you must provide employees your company’s name, address, and telephone number in writing.23 state law also requires you to provide the Wage and Employment Notice to Employees (Labor Code section 2810.5) at the time of hire to all nonexempt employees that includes this information and meets the obligation under the ordinance.24 More information about the notice can be found on the HR Library's New Employee Orientation page.

Payday Notice

Unlike the state law, the ordinance does not have a payday notice requirement. To comply with both laws, you must provide an employee with an itemized wage statement or other written document accompanying the employee's wages that notifies the employee of the amount of accrued ESL available each pay period.

Recordkeeping

You also are required to retain records of each employee’s name, hours worked, pay rate and sick leave accrual and usage, and service charge collection and distribution for a period of three years. You must provide a copy of these records to the employee upon request. You must permit the city to access work sites and relevant records for compliance monitoring and investigation.25

Enforcement

The city enforces the ordinance.26

If the city determines that an employer violated the ordinance, the city may issue an administrative citation with a fine pursuant to the Municipal Code. Under an amendment to the ordinance effective November 2, 2017, those fines are specified as follows: a fine of $500 for failure to post or provide proper notices, failure to maintain proper records, or failure to allow the city access to records; a fine of $1000 for each employee retaliated against; and a fine equal to the total amount of remedies (see below).27 Before initiating an enforcement action, the city is required to make every effort to resolve complaints informally.28 In addition, aggrieved employees or the city may file a civil lawsuit for any violation of the ordinance. The party that prevails in the lawsuit is entitled to attorney’s fees and costs.29

Remedies for violations of the ordinance may include: reinstatement; back pay with interest; penalties in the amount of $50 to each employee for each day or portion of a day that the violation occurred; and interest on wages owed. Under an amendment to the ordinance effective November 2, 2017, remedies may also include ; reimbursement of the city’s administrative costs of enforcement, and for repeated violation within a period of July 1 to June 30 of the following year, an additional city-ordered civil penalty payable to the city of $50 per day or portion of a day a violation occurs, for each employee or person whose rights were violated30

Retaliation

Employees who assert their rights under the ordinance are protected from retaliation.31 For example, employees have the right to file formal complaints asserting their rights.

An employer may not discharge an employee within 120 days after the employer was notified that an employee asserted rights protected by the ordinance, unless the employer is able to show just cause for the discharge.

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1. Lab. Code sec 246(r)

2. Emeryville Mun. Code sec. 5-37.01(d)

3. Emeryville Mun. Code sec. 5-37.01(c)

4. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Regulations (1.1(a), 4.3(d))

5. Emeryville Mun. Code sec. 5-37.07(e)

6. Emeryville Mun. Code sec. 5-37.03(b)

7. Emeryville Mun. Code sec. 5-37.03 (b)(2)(i)

8. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ No. 9)

9. Emeryville Mun. Code sec. 5-37.03(b)(3)

10. Emeryville Mun. Code sec. 5-37.03(b)(2(ii), (4)

11. Emeryville Mun. Code sec. 5-37.03(b)(2(iii)

12. Emeryville Mun. Code sec. 5-37.03 (b)(3); Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018) (Paid Sick Leave Requirement FAQ Nos. 11,12)

13. Emeryville Mun. Code sec. 5-37.03(c)

14. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ No.15)

15.Emeryville Mun. Code sec. 5-37.03(c)(1)

16. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)

17. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ Nos. 29-31)

18. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ No. 30)

19. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ No. 32)

20. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018)(Paid Sick Leave Requirement FAQ No. 34)

21. Emeryville Mun. Code sec. 5-37.05(b)

22. Emeryville’s Minimum Wage and Paid Sick Leave Ordinance Frequently Asked Questions (February 1, 2018) (General Information FAQ No. 7)

23. Emeryville Mun. Code sec. 5-37.05(b)

24. Lab. Code sec. 2810.5

25. Emeryville Mun. Code sec. 5-37.07(f) (g)

26. Emeryville Mun. Code sec. 5-37.06(c)

27. Emeryville Mun. Code sec. 5-37.07(a)

28. Emeryville Mun. Code sec. 5-37.06(c), (d)

29. Emeryville Mun. Code sec. 5-37.07(a)(2), (b)

30. Emeryville Mun. Code sec. 5-37.07(c)

31. Emeryville Mun. Code sec. 5-37.07(d)