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 and Wage Order 15,
feel free to contact Landegger Baron Law Group (see contact information to the left).
Can an employer make the accrued sick time available electronically, instead of on the paystub?
Yes. The law says that accrued sick leave must appear on the paycheck stubs, or “another written document made available to the employee on payday.”
This means that a separate written document may be either given to the employee on payday, or made available online and in a format that the employee can print it if they want to.
I would also suggest including a link that they could access every payday that specifically says “click here to see accrued sick time balances,” or something similar.
If our employees are paid some kind of “premium pay” during their regular workweek, do we need to include that pay when we pay them sick leave?
Yes, if the shift that they call out sick for is a shift where they would have earned the premium pay. For example,
if you pay extra for the night shift, and the employee was scheduled to work the night shift when they call out sick,
you would want to pay them for the hours they were scheduled to work at the premium rate.
Can an employer switch between the accrual method and lump-sum method?
Yes. But, if the employee has accrued sick time up to 48 hours and then you switch to the lump-sum payment, I would not remove the employee’s
accrued time until they fall below 24 hours. All an employer needs to do is change their policy in written form and distribute it to the employee prior to June 30, 2015.
If an employee has accrued sick leave, must an employer pay the time when an employee leaves employment?
No, except if you have a PTO policy that covers all leave. In that case, any accrued PTO must be paid out at the time of termination.
How does an employer notify employees about the new law?
Posters are available from the California Chamber of Commerce. Employers are also required to give all new employees a “Notice to Employee”
form which includes their sick leave policy. That form is also available from the Chamber of Commerce as well as online.
Can the employer require documentation or “proof of illness” prior to payment?
The law is silent about whether an employer can ask for a doctor’s note; however, the law is clear that an employee cannot retaliate against an
employee for using, requesting, or asking questions about sick leave. In our opinion, it could seem retaliatory to ask an employee to spend a sick day at the doctor’s office to “prove” that they have a flu, or a
stomach virus, or that their kid has a cold. Instead, we would strongly suggest waiting to ask for a doctor’s note until an employee has been absent for more than 2 days. In other words, if they call in sick on day 3,
tell them they cannot come back without a note.
Can an employer have separate policies for part-time, full-time, hourly, exempt employees?
Yes. An employer may discriminate amongst a class of equal employees; however, the minimum an employer must offer to ALL employees is at least
1 hour for every 30 hours worked, OR 24 hours up front. If an employer wants to give certain groups of employees more sick leave, or eliminate the 90 day waiting period for a certain group, that is fine.
How is the 30 hours calculated?
An employee earns 1 hour of sick leave for every actual 30 hours worked, exclusive of holiday, vacation, or any other time. Even if it takes an
employee two or three pay periods to actually work 30 hours, as soon as they have worked 30 hours, they earn 1 hour of leave, and the paycheck must reflect that one hour. The only exception is in the case of a
salaried employee, who may in fact work more or less than 30 hours per week. The law states that salaried employees must earn 1.3 hours per week. Hourly employees only earn sick leave based on the actual hours
they work under the accrual method.
How does an employer calculate a commissioned employee’s sick leave rate?
The law states that if an employee earns varying rates of pay, the employer must average the last 90 days of pay to determine the sick leave rate.
An employer does not need to include the value of any benefit the employer may provide to the employee, only the amount of income the employee received over the last 90 days.
How soon do employees begin to accrue sick leave?
ALL employees—temporary, part-time, temp to hire, interns—begin accruing sick leave on the first day of employment, but do not get to use any
until they have actually worked at least 30 calendar days and reached their 90th day of employment.
Can an employer set limits on the use of sick leave?
An employer may say that an employee cannot use less than 2 hours of sick leave on a given day,
but if an employee leaves 3 hours early for their shift, an employer can only deduct 3 hours of sick leave, not 4
Can an employer give part-time employees the front-load, and full-time employees the accrual system?
Technically, yes. We would recommend that the employer give both part-time and full-time employees 24 hours up front in that case, and then allow the full-time
employees to accrue additional sick leave. I would be wary of letting part-time employees have access to more sick leave up front, and telling full-time employees that they have to wait longer.
How will the new sick leave integrate with California Paid Family Leave law?
Great question! Under California’s PFL, employees are entitled to take up to six weeks of leave for the care of a family member, the birth of a new baby,
or their own serious health condition. Employees get paid for this leave by the State Disability program, which is paid for by contributions by the employee. Under the law, an employer may NOT require an employee to use their
sick leave benefits during this leave; however, there is a 7 day waiting period before benefits begin, so an employer can remind an employee that if they want to receive pay during those first 7 days, they could use their accrued sick leave.
If we use the accrual method, and an employee accrues less than 24 hours in a year, does the employer have to give them
the additional hours to reach 24?
No. If an employer uses the accrual method, the employee is only entitled to accrue whatever they earn according to the 1 hour for
every 30 worked. If, on the other hand, an employer uses the front-load method, then ALL employees receive 24 hours up front.
Can an employee choose NOT to use sick leave?
Yes. The sick leave benefit belongs to the employee, so if the employee takes a day off and is ill and does not request to use sick leave,
we would recommend allowing the employee to keep the remaining sick leave in their bank.
Can an employer force an employee to use more than 2 hours of sick leave at a time?
No. An employer can set the minimum use at 2 hours, but no more. If an employee is out sick for 3 hours, they can only be charged 3 hours.
How does PTO affect the law?
If an employer has a PTO policy that explicitly states that it can be used for ALL reasons—personal, sick or vacation—then the policy is compliant with the law,
so long as employees either receive at least 24 hours of PTO front-loaded, or they accrue it at the rate of 1 hour for every 30 hours worked. It is also important to note that if an employer uses the PTO method, PTO is treated just
like vacation in California. That means that if an employee is terminated or quits, you will need to pay them the remaining PTO in their bank.