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California Paid Sick Leave

All California employees will become eligible to receive up to three paid sick days a year starting July 1, 2015. Employers were never previously required to offer paid sick leave. This new law applies to employers of all sizes. Employees who work in California for thirty or more days within a year from the start of their employment will accrue paid sick leave at a rate of no less than one hour for every thirty hours worked. Exempt employees with a normal forty hour work week will be credited with forty hours worked per week for the purpose of accruing paid sick leave. Accrued paid sick leave can be used starting on the ninetieth day of employment.

This new law has many advantages for California's workers. The law has an anti-retaliation provision that provides new protection from termination for employees. California's employers previously could fire an employee who missed a day of work due to an illness. Employers should no longer be able to fire a sick worker who has accrued paid sick leave. This new protection will save many jobs.

Employers cannot require an employee worker who takes sick leave to find their own replacement to cover for them while on sick leave. Employers can voluntarily lend paid sick leave that has not yet been accrued to an employee. Unused sick leave can be carried over to the following year. Employers can however limit an employee to using a maximum of three paid sick days (twenty-four hours) in a year. An employer also has no obligation to allow an employee's total accrual of paid sick leave to exceed 48 hours or six days provided that an employee's rights to accrue and use paid sick leave under this are not otherwise limited. This six-day accrual limit appears intended to ensure the employee has the full paid sick leave allotment both for the current year and the beginning of the next year.

Employers will not be required to pay out unused sick days to an employee upon termination of employment, but they must reinstate the previously unused balance if they rehire the employee within one year. In that instance, the rehired employee shall be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring.

Employees will be entitled to use paid sick time for preventive care for themselves or a family member, as well as for the diagnosis, care, or treatment of their or their family member's existing health condition. For purposes of this bill, "family member" means a (1) child (as defined), (2) parent (as defined), (3) spouse, (4) registered domestic partner, (5) grandparent, (6) grandchild, or (7) sibling. The employer shall also provide paid sick days for an employee who is a victim of domestic violence, sexual assault, or stalking.

An employee may determine how much paid sick leave the employee needs to use, but an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave. In response to employer concerns that sick leave is more unpredictable than many other forms of leave (Family Medical Leave for example), this law requires employees to provide "reasonable" advance notification if the need for paid sick leave is foreseeable. Where the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for leave as soon as practicable. Employees using paid sick leave shall be compensated at the employee's normal rate during regular hours of work. If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee's total wages, not including overtime premium pay, by the employee's total hours worked in the full pay periods of the prior 90 days of employment.

Employers who already provide paid sick leave do not need to provide "additional" paid sick days if certain requirements are met. Specifically, the employer is exempted from providing additional paid sick days if: (a) it has a paid leave policy or paid time off policy, (b) the employer makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in this new law, and (c) the employer's policy does either of the following: (1) it satisfies the accrual, carry over and use requirements of this new law; or (2) it provides no less than 24 hours or three days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment, calendar year or 12-month basis.

Employers will also be required to provide employees with written notice identifying the amount of paid sick leave available, or paid time off an employee provides in lieu of sick leave, for use on either the employee's itemized wage statement or in a separate writing provided on the designated pay date with the employee's payment of wages.

This law also prohibits discrimination or retaliation against employees for using accrued sick days, or for filing a complaint regarding any sick day policy violation. The law creates a rebuttable presumption of unlawful retaliation if an employer takes an adverse employment action (including denying the right to use sick days) within 30 days of an employee: (1) filing a complaint with the Labor Commissioner or in court alleging violations of this article; (2) cooperating with an investigation or prosecution of an alleged violation of this article; or (3) opposing a policy, practice or act that is prohibited by "this article" of the Labor Code. 

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