November 11th, 2014
With the promise that “more is coming,” Governor Brown signed AB 1522 into law and so, beginning on July 1, 2015, almost every employer in California must provide paid sick leave to all of their employees. While the initial amount of paid sick leave is modest, the real headache will come from compliance with the law.
Which Employees Are Covered? AB 1522 applies to all employers, regardless of their size, making it the broadest paid sick law in the nation. The only exceptions are for: (1) employees covered by a collective bargaining agreement that provides for paid sick days; (2) providers of certain in-home supportive services; or (3) airline employees subject to the federal Railway Labor Act.
How Much Time Accrues? Paid sick leave accrues at the rate of one hour of paid sick time for every 30 hours worked. In the case of employees whose hours are not tracked because they are exempt from overtime, it is assumed they work a 40-hour week unless it can be established that the employee’s normal workweek is less than that. Of course, tracking the hours of exempt employees may have unforeseen consequences due to other legal provisions. Therefore, tracking hours to minimize paid sick leave could be a poor policy decision for an employer.
Under AB 1522, unused paid sick days do carry over in the next year, although an employer may limit the total accrual to 48 hours.
What Pay Rate Applies? The sick leave is paid at the employee’s normal rate of pay at the time they take the leave and it must be paid during the next immediate payroll following the used sick days. If an employee had different pay rates in the 90 days prior to taking the sick days, is paid on commission, or is an exempt non-hourly employee, then the rate of pay will be calculated by dividing the employee’s total wages (excluding overtime) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
When Can Employers Use Sick Time? Unlike other sick leave statutes which allow use for “serious” illness, under AB 1522, paid sick time can be used for virtually any health-related use and it must be granted upon request (verbal or written) of the employee. Paid sick time can also be used by a victim of domestic violence, sexual assault, or stalking. Other than an employee asking to use sick leave to go to Disneyland, employers should err on the side of granting leave.
How Is AB 1522 Enforced? The law provides that employers shall not deny employees the right to use paid sick days and shall not discharge or otherwise take any adverse action against them because they request to use paid sick leave. AB 1522 also provides that it will be assumed that an employer has engaged in unlawful retaliation when, broadly speaking, an employer denies an employee the right to use paid vacation after the employee opposed an employer’s sick leave policy or practice. However, it is important to note that at this point AB 1522 will be enforced by the Labor Commissioner, the same entity that enforces wage and hour laws. The bill does not give employees the right to sue on their own behalf.
Does This Mean More Posters And Statements? Of course this new law requires yet more postings in the work place. Additionally, AB 1522 requires an employee’s paid sick leave accrual to be included on wage statements or in a separate document provided with the employee’s paycheck.
– Jim McDermott
(805) 659-6800, ext. 216