California Paid Sick Leave Tips for Cold and Flu Season

If you have kids in school, you may agree that it feels like they are walking petri dishes whenever they return to class after a break, bringing home various colds and flus. This past month, our house was no exception and validated my personal belief that in January, every day feels like a Monday.

Although January is now behind us, we are still in cold and flu season until the weather starts to warm. At the beginning of the calendar year, many employers also reset sick leave banks, which means you may see an uptick in leave requests in the first quarter of the year. With that in mind, it is a good time for employers to refresh themselves on California Paid Sick Leave (PSL) rights, with our 5 top tips below.

Tip #1: All Employees are Entitled

First, it is a common misconception that only fulltime or regular employees are entitled to paid sick leave. In fact, the rule is the same for everyone: all employees are entitled to California PSL and it is not prorated for part-time employees. More specifically, all employees who work at least 30 days for the same employer within a year in California, including part-time, temporary employees, etc. are covered by the law’s protections, subject to a few narrow exceptions.

Note that some employees are partially exempt from certain PSL requirements if they are covered by a qualifying collective bargaining agreement with specified provisions. 

Tip #2: Employers Have Options

Employers have a few different options to satisfy PSL requirements. The most common ones include:

• Frontload (i.e., Lump Sum): The employer frontloads employees a sick leave bank of 40 hours or 5 days (whichever is greater) at the beginning of a 12-month period. The bank will “reset” to 40 hours or 5 days each year, with no carryover of unused sick leave.
• Default Accrual Method: Employees accrue one hour of sick leave for every 30 hours worked. Unused sick leave carries over to the following year, but employers may cap it at 80 hours or 10 days (whichever is greater).
• Alternative Accrual Method: An employer provides an alternative accrual method that will result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day in a year and 40 hours by the 200th calendar day. Again, unused sick leave carries over to the following year, but employers may cap it at 80 hours or 10 days (whichever is greater).

It is important to remember that it is required for employers to have a written Paid Sick Leave policy if you use a method other than the default accrual method. In any case, we recommend that employers always include a paid sick leave policy in their employee handbook, outlining covered purposes, notice requirements, and any usage restrictions. As an additional reminder, any available sick leave must also be listed on an employee’s wage statement.

You may decide to use a combination of PSL options based on employee classification. For example, some employers may choose to frontload sick leave hours for full-time employees, while part-time employees are subject to accruing sick leave based on hours worked. This is a good solution for employers who want to avoid giving very part-time employees a full 40-hour leave bank upfront. 

Tip #3: Permitted Employer Restrictions  

Employers have a few ways to restrict sick leave usage, but should make sure any restrictions are clearly outlined in their policy. For example, although any new hire begins accruing paid sick leave on day one of employment (or is immediately frontloaded hours in the case of a lump sum), you may restrict usage of paid sick leave until after they have completed 90 days of employment with you.

Additionally, although an employee may earn up to 80 hours or 10 days of paid sick leave under the accrual methods, you can still restrict usage in a 12-month period to 40 hours or 5 days.

Tip #4: Sick Leave Protections

California employers should proceed with caution and get guidance when an employee’s sick leave rights may be at issue. PSL carries many protections. In its FAQs, the DIR reminds employers:

“[I]n general terms, [] if an employee has accrued sick days available, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use paid sick leave for a partial day (e.g., to attend a doctor’s appointment), and may not discipline the employee for doing so . . . if an employee has accrued and available sick leave, and is using his or her accrued paid sick leave for a purpose as specified in the law, it is not permissible for an employer to give the employee an “occurrence” for the absence . . .”

Also, even if an employee does not have protected sick leave time available, you may need to consider other available protected leaves (e.g., CFRA/FMLA), and you may still be required to accommodate them or provide leave time under the FEHA/ADA. 

Tip #5: Combined PTO Policies

Some employers choose to satisfy PSL requirements by offering a Paid Time Off (PTO) program, which combines sick and vacation under one leave bank. When an employer chooses to do this, PTO carries the protections of both sick and vacation laws and for this reason, is most beneficial to employees. For example, time used for sick leave purposes can be taken with little to no notice and would protect the employee from adverse action. Plus, just like vacation, the employee would have a right to be paid out all PTO on their final paycheck, should they leave your employment. This is not required for sick leave under a stand-alone PSL policy.

These are just a few examples, but there are many more implications for PTO policies. We recommend having a trusted advisor assist you in drafting your program, to ensure compliance with all applicable requirements.

CEA Can Assist You!

CEA has a team of HR Advisors that can assist your company in drafting sick leave, vacation and PTO policies, as well as customized employee handbooks. Give us a call at 800.399.5331 to get started.