My employer already had a paid time off (PTO) policy where I was able to use PTO for paid sick leave. This was before the law changed in 2015. Is my employer supposed to give me more sick leave now that a new law has gone into effect?
No, they are not. There is a grandfather clause within the law that allow PTO plans. If your employer already had some sort of paid leave plan they are able to keep using that policy. They will be able to follow the law, as it currently exists, and ensure paid sick time requirements are met. This is also true if your employer had paid leave available to use for what is required by law.
My employer gives paid sick time via a grandfathered PTO plan. Is there a difference in the amount of money my employer has to pay? Does the new law allow for compensation of time for something besides sick days?
No, it does not. The law only applies to time taken off for when you are officially taking a sick day. There is no bearing on the amount that will be paid for PTO for anything besides this. Time taken for vacationing or some other reason is not applicable.
According to the new mandate, employers will have to compensate employees for any time they take as sick leave. The way this is determined is according to the following:
- Paid sick leave, when employees are non-exempt, will be tallied just like the normal pay rate is for a given work week. This will be when an employee utilizes this time. It also will be regardless of if the employee works overtime or not during that week.
- Paid sick leave, when employees are non-exempt, will be tallied by the division of their total wages. This will not include any overtime paid out. It will be divided by the total amount of time worked within a pay period during the first 3 months of being employed.
- Paid sick leave, when employees are exempt, will be tallied the same way that wages for other types of paid time off are conducted.
Overall, this all means one thing for the amount of time that is taken as being paid sick time. It will have to be paid out according to what the normal pay rate is. This is true for the work week when the time off was used. Alternatively, it will be figured out by taking the average over a 3 month period of time.
When a plan for PTO that was grandfathered in, the employer will have to allow it to be used to sick leave. It will also have to paid out at the same rate. Employers will have to make sure they are following the law. They can do so by ensuring sick time taken off gets paid out, as the law says it has to be.
This new law is not addressing or impacting the way employers pay their employees according to current policies. Employers can pay out employees according to currently-present PTO plans for vacations and personal time for holidays. These payouts will have to be at a “base rate” which differs from paid sick time. In that case, the payout would have to be higher than the normal rate. Again, this is based on a given work week or a 3 month average.
Plans and Policies Related to Paid Sick Time and Attendance
Does my employer had the right to reprimand me if I use paid sick leave? Can they reprimand me for using some of that time to make a visit to the doctor?
They will usually be unable to do so. However, there are situations which are more nuanced, that may provide a caveat for this situation.
According to the new law, the following applies:
Employers will be unable to block an employee’s right to utilize their accrued sick time. They are also not allowed to fire them, threaten to do so, demote them, or suspend them. They are not allowed to use any other form of discrimination.
Employers are also mandated to ensure employees can use their accrued sick time available to them. This ensures that employers cannot deny the ability of an employee to use their accrued sick time. The employees have a right to use their sick time, even if it’s for just for a few hours to go to the doctor’s office. Employers are barred from reprimanding employees from doing this.
There are many companies that include policies where employees are adversely affected by doing what was outlined above. However, according to the law, if an employee has accrued sick time, they can use it. Employers are not allowed to discipline employees if those employees are taking sick time, even partial sick leave. This is because it would be considered retribution against employees who are using their legally-allotted sick leave.
In the case that an employee has no paid sick time, employers can reprimand them. This is also true if an employee has not notified their employer that they will be out of work. The current law allows employers to discipline their employees if they are not at work. This is even true if those employees were indeed sick. The law is only protecting the right of employees to accrue sick time.
Additionally, if an employee is not at work when they should be, their employer does not have to let them use paid sick time for it. This is true when an employee skips work in a way that goes against company policy. The employer has a right to disciple that employee.
The current law for paid sick time mandates that employers give out paid sick days for these situations:
- An employee needs to get diagnosed or treated for a health issue they have. This could also mean preventative care, for either that employee or someone in their family.
- An employee has succumbed to domestic abuse, sexual abuse, or is being stalked.
How Eligibility Works for the New Paid Sick Time Law
When will the law become effective?
The new paid sick time law is already in effect, as of January 1st, 2015. Employees have been able to accrue and use sick time starting on July 1st, 2015. There were many companies who already had sick time plans prior to the new law. Sometimes, these companies were not required to make any changes.
How can I get paid sick time?
In order to be eligible for getting paid sick time, the following need to occur:
- You have to be employed by the same employer on or beyond 1/1/15. This employment has to be for at least 30 days and inside the state of California.
- In addition, you have to have worked at least 90 days before you can start taking sick time.
Can I get paid sick time when working under 30 days in CA within a year?
No, you are not able to get paid sick time according to the current law.
Can I get paid sick time when working over 30 days but less than 90 in CA within a year?
No, you are not able to get paid sick time during the “probation” period between 30 and 90 days.
When can I start getting paid sick time?
You will have been able to start accruing paid sick time on July 1st, 2015 and beyond. If you were hired after this day, you could start accruing on your first day of working. You are allowed to start using your paid sick time on your 90th day of being employed.
Can every employee in CA get paid sick time?
Anyone that is an employee within the state of California, working at least 30 days within a year, is covered. This includes employees working part time and per diem, as well as temps. There are a few exceptions, which are the following:
- Those who provide In-Home Supportive Services, which are funded by the state government.
- Employees who are part of union agreements with specific clauses.
- People who work on airplanes, if they get paid time off at least what is required by law.
- Individuals who used to work as annuitants for state government bodies, but are now retired.
Do I get paid sick time if I was hired by a staffing agency?
Yes, you do. The current law includes people who were hired by staffing agencies. Those agencies act as the de facto employer. This means they need to give you paid sick time if you quality.
How much paid sick time can I get when I am qualified to do so?
The answer to this will vary, depending on what policy your employer is offering. Whatever policy it is, it will have to abide by the new mandate. There are certain employers who have previously had a policy for paid time or sick time. If so, they may have kept those policies in place if they complied. Nothing will change in those instances. Overall, the new law lets employees use 24 hours (3 work days) of time off annually.
When a company puts a new policy in place so it abides by the law, it has two options. It can either have an accrual or upfront policy.
An accrual policy lets employees accrue sick time as time goes on. This time also rolls over to subsequent years of being employed. The general rule is that employees are supposed to get one (or more) hours of paid time for every 30 hours they work. For this to work, employees have to have 24 or more hours of accrued sick time or PTO by the 120th day of them being employed.
Employees are able to accrue over 3 days of paid sick time when this method is used. However, an employer is allowed to bar an employee to utilize their paid sick time beyond 24 hours (3 work days) every year. According to the new mandate, employers can bar an employee to not be able to take over 48 hours (6 work days).
The other type of plan is an upfront plan. This type of policy lets employees use their sick time as soon as the year begins. The exception to this is if someone is newly-employed. If that is the case, the 120-day mark in their employment is when they could start using it. Under this policy, employers have to give 24 hours (3 work days) or more of paid sick time every year. The entirety of this time has to be available to the employees, from the start of the year. This is true for every year. One thing to keep mindful of with this plan is that the employer is able to decide when a year begins.
The new law permits some kinds of current sick time plans to be grandfathered in. This is only permitted if those plans existed before 1/1/15. These plans are considered to be compliant with the current law if the following are true:
- The accrual offers at least 8 hours (1 work day) of paid sick time or PTO within 90 days of employment.
- In addition, an employee was able to receive at least 24 hours (3 work days) of paid sick time or PTO within 270 days of being employed.
If there is any change to grandfathered policies for sick time and PTO, this will all be null and void. Employers would have to adhere to the new mandate and what it requires.
How is a year considered to be one year?
Accrual of paid sick time began 7/1/15, or day one of being employed, if a person was hired after 7/1/15. Given this, the 12-month period will differ, depending on when someone was hired after 7/1/15. This is why a year is usually measured starting at the day of them being hired.
Can an employer give an advance on paid sick time before you accrue enough of it?
Yes, this is possible. Employers are allowed to give an advance when it comes to sick time. This is allowed even before it would be naturally accrued. The law does not require employees to do this, so it is completely optional.
Is there a reason for the new law allowing more time to be accrued than can be used?
There are three separate concepts worth knowing about in regards to this law.
Accrual is based off of the amount of hours employees work.
Carryover refers to the amount of paid sick time that rolls over to subsequent years. This carryover may get capped if employers decide to place a cap.
Use of paid sick time may have a limit of 24 hours (3 work days) within a given year.
If someone works seasonally (60 days), then comes back within a year to work 60 more days, do they get paid sick time?
Yes, they do. According to the new law, if an employee returns within a year, they can get any accrued sick time they were eligible for. However, they do not necessary get to receive any PTO in certain situations.
Can you get back sick leave if you leave an employer for longer than a year?
No, the new law is not mandating employers return any accrued sick time they may have had in this case.
I worked part-time, accrued 24 hours of paid sick time and took off 3 work days. Is an employer allowed to deny me taking more time off after this?
The answer to the situation this question poses depend on what the specific circumstances are. However, usually, the answer will be that employers are not allowed to deny you taking more sick time off. The law indicates employers can restrict taking sick time to 24 hours (3 work days) in each year.
When you work part-time, such as for a 6-hour period each day, you have spent 18 out of 24 hours. This means there are 6 more hours available to you that can be paid for within the year.
Company Policy Is Allowed to Offer More Paid Sick Time, Not Less
If an employer has their own PTO policy, what occurs?
According to the law in place, there are new minimum requirements that employees have to follow regarding paid sick time. However, companies are allowed to offer their own sick time and PTO policies. They can create different types of plans for different types of workers. All plans have to meet the requirements of the law, however.
Generally, employers have to give a minimum of 24 hours (3 work days) of paid sick time each year. PTO plans that may exist can be utilized for the same reasons that sick time is used for. However, those plans must comply with any minimum requirements the law states are valid.
Generally, this law ensures that employers adopting accrual plans for paid sick time must meet certain requirements. Employees have to get a minimum of 1 hour of paid sick time for every 30 hours they work. Other accrual methods are allowed to be used. However, they have to result in at least 24 hours (3 work days) of accrued sick time or PTO. This time has to be accrued within 120 days of a given year in which someone was employed. It can also be within each calendar year, or even a defined period of 12 months.
There is also a grandfather provision within the new law. This lets employers who have plans containing paid sick time or PTO before 1/1/15 to keep them. They will stay compliant if they adhere to the following:
- The policy allows for accrual of at least 8 hours (1 work day) of accrued paid sick time or PTO within 3 months of being employed, every year.
- Additionally, employees are able to get a minimum of 24 hours (3 work days) of paid sick time or PTO within 270 days of working for an employer.
Sick time given to employees of the state government has to abide by specific statues within the Government Code. Alternatively, employers need to abide by memos that outline what the accrual requirements are.
How can employers follow requirements to place paid time into your bank account?
When considering the upfront method of giving out paid sick time, the law provides specific direction. Employers do not have to have policies for accrual of sick time under a specific condition. It is when the paid time is given at the start of every year of employment, a calendar year, of a period of 12 months. The total amount employees are supposed to receive is a 24-hour minimum (3 work days) of sick time. When an employer is new, they will need to work for 90 days before they are able to get paid out for sick time.
Would you be able to carryover sick time year after year by accrual?
Yes, you can. However, employers have the right to place a limit on the total sick time you can accrue for a total of 48 hours (6 work days).
If an employer offers PTO to use for vacations or being sick, do they also have to give sick time?
No, they do not. An employer must offer a minimum of 24 hours (3 work days) of PTO. You may use this time if you are sick if you would like to.
What does the new law saw if an employer provides as much time off as an employee wants?
An increasingly number of companies have stopped tracking the amount of time employees take off. This goes for any reason they would provide for taking time off of work. The current law mandates that employers log accruing sick time and usage in a separate way. This goes for companies with unlimited PTO policies.
What is an employee allowed to utilize paid sick time for?
If you need to take a paid sick day for yourself or someone in your family, you can do so. This is in the case of preventative care, diagnosing, or treating a medical condition you have. It can also be for other reasons, such as something related to domestic or sexual abuse, as well as stalking.
In more specific terms, family members would include children, parents, spouses, domestic partners, grandparents, grandchildren, and siblings. Also, preventative care refers to a yearly physical and vaccinations.
Employees are allowed to make the decision for the amount of paid sick time they would desire to utilize. This means they can take a whole day, or just a portion of one. Sometimes, an employer would request that you use at least 2 hours of your paid sick time within any one usage of it. Besides this, how much you take off is up to you.
Does an employer have to know sick time is taken before the fact?
Yes, you would have to let your employer know ahead of time if you plan on taking sick time. However, if it is an emergency situation, you can let them know the soonest it would be reasonable for you to do so. This is a situation that may arise if an unexpected injury or sickness has occurred.
If an employee wants paid sick time paid out, do they get it with their paycheck?
According to the law, employers have to give paid sick time payments at their next normal payday, at the latest. However, employers are still able to adjust the pay during the same period when the time was taken. Employers are allowed to postpone any adjustments to payouts until the following payday.
An example of this would be the following:
When an employee does not “clock in” for work, they would probably not have been paid for it. If this is the case and an employee used their paid sick time, the employer needs to pay. They will have to pay on the upcoming payday, the latest. Additionally, this needs to be accounted for on the employee’s pay stub. Alternatively, it can be specified separately on their pay statement on the next normal payday.
What is the amount someone can get paid for paid time off?
The amount you get paid will be dependent on if you are considered “exempt” or “non-exempt” by your employer. When you are non-exempt, you get paid at your usual hourly rate. We can look at an example to illustrate this. You may take 2 hours of paid sick time so you can go to a doctor. You can be paid out for the 2 hours at the usual hourly rate you have. Whatever you could have made within those two hours normally would be how much you would earn.
Here is how employers can figure out what the pay rate would be:
- Make a calculation of the usual pay rate within a given week when paid sick time was used. This is the case no matter if an employee works overtime or not during a given week.
- Alternatively, they may take whatever the total amount you make (except overtime) within the past 90 days and divide it. They will divide it by the amount of regular hours an employee worked during a pay period within the past 90 days.
When it comes to employees who are exempt, this paid time is measured the same way employers measure pay for other types of paid time. This includes vacation and PTO.
How can you ascertain the amount of sick time you have accrued?
An employer will have to provide information on the amount of sick days available to an employee. This information has to be given on either a pay stub or statement provided with a paycheck. In the case of companies giving unlimited time off, employers can make a note of that on pay stubs. They could write “unlimited” on this or some other statement that will be given to employees with their pay.
An employer is also required to maintain records that indicate the amount of paid sick time an employee accrued and used in 3 years. Information related to this can be placed on statements readily available to employers. It can be an electronic copy, rather than a printed version.
Do employers need to state the purpose of paid sick time being used?
No, they do not have to. Employers are under no obligation to ask an employee why they took paid sick time. They also do not have to log it anywhere.
Does the current law pose any issues with local laws regarding sick time?
If there are local sick laws that differ from statewide laws, employers have to abide by both. These laws may be different in some cases. If this is the case, employers would have to provide what is most beneficial to employees.
How does paid sick time deal with working unusual work schedules?
You may be in a situation where you work for 4 days at 10 hours each day. When you take paid sick time within this kind of schedule, you need to be paid at least for 2 hours. According to the law, employees can determine how much PTO they take off, as long as this applies.
An example can help illustrate this point. Let’s say you accrued 10 hours. You would have the ability to ask for payment for all of those hours. If you made the decision to take off less paid sick time than that, you get paid for the time you took off. You would have to take off at least two hours if you take paid sick time. This is in the case of employers having the 2 hours minimum rule in place.
Let’s take a look at another example. You may work an unusual work schedule, getting sick at some point for 3 days. If you had already accrued 24 hours (3 work days) of pay, that is what the payout will be for. If you accrued 30 hours of paid sick time, you have to get paid for either 30 hours or 3 work days.
Are employees allowed to get paid out for unused sick days?
No, they are not. The only time this is not the case is when an employer states within their policies that they pay out. You can leave a company, then get hired back, within a year, and get back your accrued paid sick time. The exception is if it was not already paid out according to a PTO policy when you left.
What is the way in which an employee can discover their paid sick time rights from their employer?
As of 1/1/15, employers have to show a poster somewhere within their company walls. The poster has to include the following:
- Information about how employees are allowed to accrue, ask for, and utilize paid sick time.
- Retribution or discriminating against employees who ask for paid sick time, or using of that time, is not allowed.
- Information stating employees are allowed, by law, to lodge complaints with the Labor Commissioner’s Office when employers retaliate or discriminate against employees.
The passage of the new law necessitated the creation of a poster by the state government with this information. This is a resource that can be found on their website.
Since 1/1/15, employers have to give the majority of employees a special notice. This Notice to Employees has information concerning paid sick time. Newly-hired employees have to be provided this notice when they are hired. Existing employees who have worked for a company since before 1/1/15 also need a notice. They must be given a notice to let them know about the paid sick time law.
The only time this notice is not applicable is in the case of exempt employees, employees part of a union meeting specs, and a majority of governmental employees.
How do you know if an employer’s plan states something other than what the law says?
The current law regarding paid sick leave sets out the bare minimum for it. Employers are allowed to use plans they already had in place, as long as they abide by the statute’s minimums. If a current policy meets or goes beyond current legal requirements, the Notice to Employees will indicate that.
Employers are advised to help avoid any misunderstandings or incorrect information when it comes to PTO and paid sick time policies. They should make sure employees are completely aware of what the terms and conditions are for these policies.
Do employers need to give a notice to employees who have worked for them since before 1/1/15?
Yes, they usually do. The cases in which this would not be true is for exempt employees, employees of the government, and unionized employees. A revised version of the Notice has to be provided to employees who have been employed since before 1/1/15.
An employer may already have a policy regarding PTO or sick time. If they affirm that it follows the law, so it won’t be changed, does there still need to be a notice?
An employer may very well have an existing plan for PTO and paid sick time. This policy may even adhere to the basic requirements of the new law. However, the employer still needs to provide a written notice of some time to employees. The new law makes this one of the requirements.
According to the Labor Commissioner, employers should be giving out notices to every employee with new information. This information has to align with the new law for paid sick time. The notice they provide to employees has to include information on the rights employees have. Optimally, there should be information on how employers will be able to abide by the new law. This could be in the form of a written statement that employers give out. It can spell out what the current sick time plan is within the company, along with information that comes from the revised notice.
Brad Nakase, Attorney