Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Marie Davis, Esq. If you have questions of your own or require further information regarding California paid sick leave ,
feel free to contact Landegger Baron Law Group (see contact information to the left).
We currently have a PTO policy in place, but accruals do not show up on exempt employees’ pay check stubs. Do we need to add accruals to their check stubs?
Yes. The exempt employees are not exempt from the law, so their PTO accrual and usage needs to show up on the paystub, but it does not need to be separated out as sick leave.
One other thing: it is OK to discriminate among classes of employees. So, if you want to treat your exempt employees better than your non-exempt employees, or your full-time
employees better than your part-time employees, that’s fine, just as long as everybody gets the minimum benefits required under the law. If you have full-time employees who earn 5 days of sick leave per year, that’s fine. If your part-time employees only earn 3 days of sick leave per year, that’s fine too—just as long as you have a clear written policy, which I’d be happy to review.
If there was a pay rate change in the last 90 days from the time an employee uses their sick time, do we still have to calculate at what rate they will be paid at?
No. You only use the 90-day average when you have an employee who earns multiple rates of pay, such as when the employee earns commissions. So, if your employee received a pay raise during those 90 days, that’s only going to matter if that individual is regularly earning commissions, etc. For example, say I’m going to get a raise to 11 dollars an hour, and I was earning 10 dollars an hour. During that pay period, I go out sick for 8 hours. You are going to pay me 8 hours at the rate of 11 dollars an hour. You aren’t going to have to look back 90 days to determine my rate. If I am an individual earning 10 dollars an hour plus commission and I get a raise to 11 dollars an hour plus commission, then yes, you’re going to have to go back 90 days to determine my rate, or, according to the amendment, you can just look at the previous work week.
Would showing the ending balance on the previous stub be considered the same as showing the beginning balance on the current stub?
The pay stub has to show at least 3 things: accrual, use, and balance. It would be better, however, if it showed the opening balance.
Due to our system constraints, our time is maintained outside of the payroll. Can we email a document to our employees on payday, as they get their paystubs online as well?
If you cannot include sick leave accruals, use, and balance on a pay stub, then yes—as long as you send some sort of written document along with the paycheck. What’s required is that a person be able to get their pay check and at that time do something—click on a link, open an envelope, something—to see how much sick leave they have available.
Can we ask for a doctor’s note if the employee takes the 3 sick days consecutively?
Yes. If they call in sick on day 1, then you say, “OK, see you tomorrow.” If they call in sick on day 2, then, “OK, see you tomorrow.” If they call in sick on day 3, then on that third day you are allowed to say, “OK, when you come back, you need to bring a doctor’s note.”
If an employer provides 10 days of sick pay per year, is all the accrual protected or just 48 hours?
If you provide 10 days, whether front-loaded or accrued, that is more than what the law demands. So, if you provide 10 a year, you can limit the use to 3 days, or 24 hours.
Do you have to show a balance on a pay slip if an employee’s balance is available to them 24/7?
I would do something on payday, like providing a link to the employee’s sick leave balance. Because the law doesn’t specifically talk about cases where an employee has unlimited access to their balance, I would provide the link on payday, just to be safe. A reminder email or something that says, “Hey, this is how much sick leave you have,” would also be acceptable.
We have the amount accrued and the current balance reported on check stubs. Does the opening balance HAVE to be reported on the check stub?
No, as long as it shows on a paystub. The stub should say, “I had 24 hours available; I accrued 6 hours during that pay period; I used 8.” It should also show the current balance. From what I’m hearing, you’re doing it right. As long as an employee can look at it and say, “This is how much I had; This is how much I used; This is how much I accrued; This is how much I have left.” That’s what it needs to show.
My employees work from home. Do I have to post a poster?
If there is some sort of main office, you are supposed to post in your main office (break room area) a copy of the wage order and a notice from the Cal Chamber; however, every employee—even though they work from home—has to receive the labor code section 2810.5 notice to employees. You can actually just download the notice directly from the internet, or you can email me and I can send it to you. And
when it comes to your sick leave policy, I would recommend treating it just like your anti-discrimination, sexual harassment, and meal and rest break policies. All should be written and have some sort of acknowledgement line where the employee can acknowledge that they’ve read it, received it, and understood it. You don’t have to send your remote employees a poster, but you definitely have to send them some sort of written notification that discusses sick leave so that they know what they’re entitled to.
Would this apply to interns?
That is a good question, and you should probably call me separately because there really is no such thing as an unpaid intern in the state of California anymore. If you have an unpaid intern, the internship is supposed to be directly related to their education and it should be through an accredited college. I always advise clients to go through a college. Don’t try to do anything on your own. Keep in mind that an intern can’t do anything for you that a regular employee could do. So, if you have an intern doing filing or making phone calls or reviewing papers or anything like that, you can’t claim that they’re an unpaid intern. You actually could end up owing those individuals minimum wage, meal and rest breaks, and certainly sick leave. Just know that if you are using unpaid interns, you have to be careful. If you are using unpaid interns correctly,
however, then no, you wouldn’t have to provide them with any type of benefit. If they are paid interns, then yes, you have to provide them the benefits.
What if the employer sick policy says that the first day of sick pay is not paid and that you only get sick pay starting the second day?
No. You must allow the employee to use and get paid for all sick time they request. The only limit employers can place on employees is the minimum 2 hour use rule. If your employees call out sick, and their shift is 8 hours or 12 hours, you are going to pay them those 8 hours or 12 hours. You can’t tell them that
you won’t pay them until day 2. You have to pay them for the time that they used, when they used it, with the only limitation being the 2 hours minimum of use.
My temporary agency is also required to give their employees 3 paid sick days. If I hire the employee and they have already used their sick days through the agency, am I required to give them another 3 sick days?
If you hire an individual from a temp agency, meaning your contract with the temp agency is now completed, that employee is now your employee. And by the way, you’ve been a joint employer of that employee all along. On July 1, 2015, any employer who uses a leasing company is jointly liable for wage and hour violations.
Once that employee becomes your employee and that employee works for you for 30 calendar days, yes, you have to provide them with sick leave.
I have a question regarding the sick leave reinstatement provision. We had an existing sick pay policy prior to July 1, 2015. What happens if an employee had accrued more than 24 hours prior to July 1 and was rehired after July 1? How much accrued sick pay should we reinstate for the employee?
If an employee terminated prior to July 1 and the employer’s written policy prior to July 1 was not to have any kind of rollover, then you’ve got nothing to worry about. If they’re rehired after July 1, they have to work 30 calendar days to be entitled to the benefit, and they must pass 90 days of employment to take it. Whatever method you’ve used is what’s going to apply to them.
The amendment states that if an employer pays out "ANY" sick pay upon separation the sick time does not need to be reinstated. So, if the employer pays out 1 hour on separation does the remaining sick time have to be reinstated?
I use the front load method of sick leave. When I hire an employee, does their first paycheck need to show the 24 hours of unused sick pay or can I wait until they have completed the 90 day probation period?
Because they accrued on their first day, so it should be on their first paycheck stub. Once they’ve hit the 30 days of work and 90 days of employment, that’s when they can start using it. If you’re frontloading, that means that your employees accrue the time on their first day of employment, even if they don’t ever hit the 30 days of work.
Are there any reporting requirements from a payroll provider to the state of California?
No, the onus is always on the employer, not the payroll provider.
Our system starts the accrual from day 1. Accruals do not show on the check stub, however, until the 90th day of employment. Do accruals have to show on check stubs from day 1, even though they are not available?
Yes, the law says that you accrue sick leave from day 1, even though it’s not available. You earn it after 30 days of actual work, and you get to take it after 90 days of employment. So yes, accruals should start showing right away.
We currently require an employee to see our company doctor before returning to work if they have been out for 3 or more days. Can I still require this if they use those three days as sick leave?
I have a problem with you requiring that your employees see your doctor before returning to work. That concerns me. If it’s for workers comp, then yes, you can have them see your own doctors. The fitness for duty test usually only occurs at the beginning of employment or post accident; I don’t like that you’re requiring it for regular sicknesses. So, I need to know more about your situation and why you’re requiring the use of your company doctor. The best practice is to just ask for a doctor’s note.
If an employee separated employment prior to July 1, 2015, are we still obligated to reinstate the sick balance? Does this only apply to those who separate after July 1, 2015?
: The law didn’t go into effect until July 1. Anything that took place before July 1, can’t be used against you. You only have to comply with the law after July 1. So if they separated prior to July 1, you don’t have to reinstate the sick balance.