The Healthy Workplaces, Healthy Families Act ("HWHFA") mandates that California employers provide all employees with paid sick leave starting July 1, 2015. The details of this significant new employment are as follows:
What: An employee can use paid sick leave to attend to his or her own health care, the health care of a family member, or when an employee is the victim of domestic violence, sexual assault, or stalking. The law defines "family member" as a child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling. This new law adds Article 1.5 (commencing with Section 245) to the Labor Code and amends Section 2810.5.
Employees will accrue paid sick leave at the rate of not less than one hour per every 30 hours worked. Exempt employees are covered and are deemed to work 40 hours a week, unless they work less than 40 hours. In that case, exempt employees accrue paid sick leave based on their normal workweek. Employers must pay employees their regular hourly wage for each hour of sick leave used. The chart below summarizes an employee's accrual over a year:
Hours Worked Per Week
Accrued Paid Sick Leave Per Year
Employers can (but are not required to) limit the employee's use of paid sick leave to 24 hours (3 days) in each year of employment. Accrued paid sick leave must carry over to the following year, but an employer has no obligation to allow an employee's total accrual to exceed 48 hours (6 days). Therefore, an employee who works 40 hours a week in a year and who does not take any paid sick leave, can only carry over 6 days, losing 2.6 days of paid sick leave.
However, there is nothing to stop an employer from allowing an employee to carryover more than 6 days. Employers are not required to pay out employees for accrued, unused paid sick leave upon separation. Additionally, it is at the employer's discretion whether to lend an employee a sick day before it is accrued. In summary, the principles of paid sick leave are similar, albeit with some differences, to the principles of paid vacation.
If an employer already offers employees paid sick leave and it complies with HWHFA (i.e. accrual rate, carry over, and use of leave), then the employer need not provide additional time off. It is important to note that the law outlines the minimum requirements; there is nothing to stop an employer from providing additional paid sick leave to employees.
When: While the law takes effect January 1, 2015, employees do not start accruing paid sick leave until July 1, 2015.
Employees are entitled to paid sick leave if they work 30 days or more a year from when they started work, and can use accrued sick leave on the 90th day of employment. After this set time, employees may use their leave as it accrues.
Where: Applies to all employees working in California (excluding the exceptions previously identified).
Why: In enacting the law, the legislature provided a multitude of reasons for the law, including lessening an employee's recovery time for an illness, reducing the spread of illnesses to co-workers and the public, the mental and physical health of a child when a parent provides personal care to a sick child, reduced cost of employee absenteeism, and employee retention.
Penalties: Enforcement of this law is by the Labor Commissioner, administrative action, or civil action. Penalties include the amount of paid sick days withheld from the employee multiplied by three, or $250, whichever is greater, but not to exceed $4,000.
The Labor Commissioner can also recover costs of $50 for each day (or part of a day) a violation occurred/continues for investigating and pursing the violation. The law contains no maximum amount for this penalty.
What else: The law has new posting requirement. Employers must display a poster in a conspicuous place describing the information relating to paid sick leave. The Labor Commissioner recently published a new poster available at http://www.dir.ca.gov/DLSE/Publications/Paid_Sick_Days_Poster_Template_(11_2014).pdf.
Upon hire, all employees must be informed about paid sick leave. Additionally, all employees must be informed "within seven calendar days after the time of changes," either in the employee's wage statement or another writing. Lastly, employers must provide employees with notice of available sick leave, either in the employee's wage statement or other writing, and keep records of each employee's accrued and used paid sick leave for at least three years.
What not to do: Retaliate. Simple. There will be a presumption of unlawful retaliation if an employer denies an employee the right to use accrued paid sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of (1) a complaint with the Labor Commission alleging a violation of this law, (2) the employee's cooperation with an investigation of a violation of this law, or (3) opposition by the employee to a policy or act prohibited by this law.
Additionally, an employer cannot make a condition of using paid sick leave that an employee has to find a replacement employee to cover the work.
Employer's Check List:
- If your work does not have a paid sick leave policy, you'll need to implement one in accordance with the new law, in which employees begin to accrue paid sick leave as of July 1, 2015;
- If your work does have a paid sick leave policy, review it to ensure compliance with HWHFA;
- Update workplace posters to include one on paid sick leave;
- Update wage statements to indicate each employee's accrued sick leave, or create another document to provide each employee with this information;
- Update employee handbook to include the company's policy on paid sick leave;
- Prepare notice to all employees about paid sick leave;
- Review new hire package to ensure information is provided about paid sick leave;
- Update record keeping practices to ensure retention of records related to each employee's accrued and used paid sick leave; and,
- Train managers on new paid sick leave law.
For more information on upcoming changes to California's employment laws in 2015, contact Simpson Delmore Greene, LLP at (619) 515-1194.
The exceptions include employees covered by collective bargaining agreements (CBA) with certain provisions, employees in the construction industry covered by a valid CBA, providers of in-home supportive services, and individuals employed by an air carrier as a flight deck or cabin crew member, provided they receive compensated time off.