• 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 OSL. You may provide more generous leave than the ordinance requires.

You can find more information regarding the ordinance at the city's Minimum Wage page. You can also call the city at (510) 238-3970 or email minwageinfo@oaklandca.gov.

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 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 OSL and the policy is sufficient to meet the OSL requirements for sick leave accrual, you are not required to provide additional paid sick leave.3

Employees Entitled to the Benefit

A covered employee (employee) under the ordinance is any employee who performs as least two hours of work in a particular week within the geographic boundaries of Oakland and who is entitled to minimum wage under California state law.4 Part-time, full-time and temporary employees are covered. The city has stated that exempt employees under California law, such as executive, administrative and professional employees and outside salespeople, are entitled to OSL. Exempt employees are also covered by the state law.5

Employers may use their defined “workweek” to determine eligibility for OSL.6

The ordinance does not apply to employees covered by a valid collective bargaining agreement if the ordinance requirements are expressly waived in clear and unambiguous terms.7

• 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

An employee working in Oakland accrues one hour of OSL for every 30 hours worked, subject to any accrual cap.8 For more information, see “Cap on Accrual” on this page.

Exempt employees accrue OSL based on a 40-hour workweek, unless their regular workweek is less than 40 hours. In such instances, OSL will be based on their regular workweek.9

The only accrual option under OSL is one hour for every 30 hours worked. The ordinance does not include an option for you to provide all the required sick leave to employees in an annual lump sum.

These important conditions apply to accrual:

• New employees begin to accrue OSL immediately and may begin using it no later than following 90 days of employment.10
• Employees accrue OSL in one hour increments and shall not accrue fractions of hours.11
• Employees accrue OSL on all hours worked in Oakland, 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 OSL must carry over to the following year of employment.12 However, you may cap the employee’s total accrued OSL. For more information, see “Cap on Accrual” on this page.

• The state law does not expressly prohibit fractional hour accrual in the manner OSL does. In order to provide the most beneficial provisions of the state law and OSL employers using the one hour for every 30 hours worked accrual method should allow for fractional accrual.

Cap on Accrual

Unless you want to allow an employee to accrue unlimited OSL, you should consider placing a cap on the maximum amount of OSL that can be accrued. Any cap on accrual should be in writing and communicated to employees.13

The ordinance states that there shall be a cap on accrued OSL as follows. According to the city’s Frequently Asked Questions, caps will not apply unless the employer implements them:14

• Small businesses (businesses with fewer than 10 employees, in any location): 40 hours
• Businesses with 10 or more employees: 72 hours

Both of these caps are lower than the state law’s accrual cap of 80 hours or 10 days, whichever is more. To comply with both laws, your maximum accrual must comply with the higher state law maximum.

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 OSL drops below the accrual cap due to usage, the employee begins to accrue OSL again at the rate of one hour for every 30 hours worked.

Permissible Usage

Employees must be allowed to use OSL for any of the following reasons:15

• When an employee is ill or injured, or for the purpose of receiving medical care, treatment or diagnosis, or other medical reason; or
• To aid or care for a covered family member, as described below, who is ill or injured or receiving medical care, treatment or diagnosis.

The state law allows employees to use sick leave for some purposes not covered by the ordinance, such as jury duty or witness leave, and for certain purposes related to when an employee or a covered family member is a victim of crime or abuse. To comply with both laws, you must allow employees to use their OSL 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 Permissible Usage page.

For purposes of OSL, a covered family member includes:16

• 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 of a domestic partner or 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;
• A sibling, including biological, adoptive, foster and step-relationships;
• A grandparent, including biological, adoptive, foster and step-relationships;
• A grandchild, including biological, adoptive, foster and step-relationships;
• 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 hours after OSL begins to accrue, employees must be given a window of 10 work days to make the designation. Employees must be provided an annual opportunity to change the designation, with a window of 10 work days to do so.

You can find more information regarding the Paid Sick Leave Employee Designated Person Form at the city's Minimum Wage page.

Effective January 1, 2023, state law allows employees to use paid sick leave to care for a “designated person,” which is more broadly defined than the OSL and can be any person identified by the employee at the time the employee requests sick leave. Additionally, the state law allows employees to use sick leave for some family members not covered by the ordinance, such as the “parent” of a spouse or registered domestic partner. 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 OSL for a covered family member.

Parameters of Oakland Sick Leave Use

There are important points regarding how employees may use OSL:17

• 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 OSL to anything less than the amount of OSL the employee has accrued.
• OSL must be provided upon an employee’s oral or written request. You may require employees to give "reasonable notification" of an absence from work for which OSL is or will be used.18 The city stated that employers may require notice “as soon as practicable,” which may be two hours before the start of an employee’s shift, except in cases of accident, emergency, or sudden illness.19 However, the state law overrides any local ordinance notice provision that is contrary to the state law. As a result, employers should only require “reasonable” advance notice if the paid sick leave is planned or “as soon as practicable” if the need is unforeseeable. Employers should not rely on the city’s guidance that two hours notice may constitute “as soon as practicable.”
• An employee may determine when and how much OSL they need to use. You can require employees to take OSL in minimum increments of no more than one hour.20 However, to comply with the state law, you should allow employees to take OSL in an initial minimum increment of no more than one hour on each occasion, 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 OSL.
• Under the ordinance, you may take "reasonable measures" to verify or document that an employee's use of OSL is lawful.21 You cannot require medical documentation under the state law. To comply with both laws, you should not request medical documentation.

Paying Employees for Oakland Sick Leave

The OSL provides the following methods to calculate how to compensate employees for OSL:22

• Pay hourly employees at their regular hourly rate at the time they take the sick leave; and
• Pay salaried employees at a rate determined by dividing their annual salary by 52 weeks to obtain a weekly salary, and then divide the weekly salary by the number of hours the employee is regularly scheduled to work.
  • If the employee is nonexempt, the weekly salary must be divided by 40 or fewer hours.
  • If the employee is exempt, the weekly salary should be divided by 40 unless there is clear and convincing evidence the employee regularly works less than 40 hours per week.

The city stated that, where an employee has two different jobs for the same employer at the different pay rates, or a fluctuating rate of pay, OSL must be paid at the scheduled rate of pay for the job during which the PSL is taken.23

• The state law differs in how employees must be paid and overrides the ordinance. Employers may not rely upon how the ordinance calculates pay and must utilize one of the following options for paying nonexempt employees:

1. Use the employee’s “regular rate of pay” for the workweek in which the leave was taken; or
2. Use the 90-day lookback method (which requires 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). For exempt employees, you pay sick leave the same way wages are calculated for other forms of paid leave time. For more information, see Paying the Employee for the Sick Day.

You must calculate paid sick time for exempt employees in the same manner as wages are calculated for other forms of paid leave.

You must pay employees no later than the payday for the next regular payroll period after the OSL was taken.24

Employee Separation and Reinstatement

Unlike accrued, unused vacation or paid time off (PTO) — which is treated like wages — OSL does not need to be paid out to the employee upon separation of employment (i.e., there is no requirement to “cash out” OSL at termination, resignation, retirement or other separation from employment).25

Unlike the state law, the ordinance does not address reinstatement of OSL when you rehire employees after a period of separation. To comply with both laws, you must reinstate any previously accrued, unused OSL 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 OSL and begin accruing additional OSL.

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, at the time of hire, to provide written notification to all employees of their rights.26 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. The city has published sample notices which comply with the notification requirements. The notice changes annually.

The current Oakland Paid Sick Leave Official Notice, in all applicable languages, can be found on CalChamber's Oakland Labor Law Poster.

• Oakland Labor Law Poster

The state law also requires you to display a Healthy Workplaces/Healthy Families Act of 2014 Paid Sick Leave notice, which can be found in CalChamber's California and Federal Labor Laws posters.

• California and Federal Labor Law Posters

You must display both notices.

New Employees

The ordinance requires you to provide written notification of OSL rights to all current employees, and to each new employee at the time of hire. state law requires you to provide the Wage and Employment Notice to Employees (Labor Code section 2810.5) to new employees regarding sick leave at the time of hire. For more information, see 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 that notifies the employee of the amount of accrued OSL available each pay period.

Recordkeeping

You also are required to retain a record of each employee’s name, hours worked, pay rate, paid sick leave accrual and usage, and service-charge collection and distribution for a period of three years.27 You must provide a copy of these records to the employee upon request. You must permit the city to access worksites and relevant records for compliance monitoring and investigation.28 Relevant records include personnel files, payroll records, wage records, schedules, sign-in and sign-out records, paid time off records, handbooks, and/or written policies, postings and procedures.29

If you do not keep adequate records documenting wages paid, or you do not allow the city reasonable access to payroll records, the employee’s account of how much they were paid will be presumed to be accurate. You will have to offer evidence to rebut this presumption.

Enforcement

The ordinance is enforced by the city’s Contract and Compliance Division of the Office of the City Administrator (Contract Compliance) in consultation with Oakland’s City Attorney.30

Contract Compliance may conduct investigations and take administrative actions to enforce the ordinance. If Contract Compliance determines that an employer violated the ordinance, the city may issue an administrative citation and award the same relief as a court may award. The city may also consider an employer's record of noncompliance with the ordinance in decisions on city contracts and land use approvals and other entitlements to expand or operate within the city.31

Aggrieved employees or the Oakland City Attorney’s Office may file a civil lawsuit for any violation of the MWO.32

Remedies for violation of the ordinance include back pay; reinstatement; witness fees and expenses; and attorneys’ fees and costs. Additionally, if it is determined that an employer negligently or intentionally violated the ordinance, the court may award civil penalties up to $1,000 for each violation.33

Retaliation

Employees who assert their rights under the ordinance are protected against retaliation.34 For example, employees have the right to file formal complaints or otherwise assert 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. Oakland Mun. Code sec. 5.92.010

3. Oakland Mun. Code sec. 5.92.030(A)(4)

4. Oakland Mun. Code sec. 5.92.010

5. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 14, 15)

6. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Minimum Wage FAQ No. 5.)

7. Oakland Mun. Code sec. 5.92.050(B)

8. Oakland Mun. Code sec. 5.92.030(A)(2)

9. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ Nos. 14, 15)

10. Oakland Mun. Code sec. 5.92.030(A)(1)

11. Oakland Mun. Code sec. 5.92.030(A)(2)

12. Oakland Mun. Code sec. 5.92.030(A)(3)

13. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 9,, 16, 17)

14. Oakland Mun. Code sec. 5.92.030(A)(3); Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 16)

15. Oakland Mun. Code sec. 5.02.030(B)(1)

16. Oakland Mun. Code sec. 5.92.030(B)(1)

17. Oakland Mun. Code sec. 5.92.030

18. Oakland Mun. Code sec. 5.92.030(B)(3)

19. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 28)

20. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 23)

21. Oakland Mun. Code sec. 5.92.030(B)(4)

22. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ Nos. 32, 33, 34)

23. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 34)

24. Oakland’s Minimum Wage Law Frequently Asked Questions (February 5, 2015) (Paid Sick Leave FAQ No. 36)

25. Oakland Mun. Code sec. 5.92.030(A)(5)

26. Oakland Mun. Code sec. 5.92.050(D)

27. Oakland Mun. Code sec. 5.92.050(C)

28. Oakland Mun. Code sec. 5.92.050(E)

29. Rules and Regulations for the Enforcement of Oakland’s Minimum Wage Law reg. #E4 (May 4, 2016)

30. Oakland Mun. Code sec. 5.92.050(F); Rules and Regulations for the Enforcement of Oakland’s Minimum Wage Law reg. #E1B, #E4 (May 4, 2016)

31. Oakland Mun. Code sec. 5.92.050(F)

32. Oakland Mun. Code sec. 5.92.050(G)

33. Oakland Mun. Code sec. 5.92.050(G)

34. Oakland Mun. Code sec. 5.92.050(A)