Sick Time Use in California: Employee Choice and Employer Mandates

In California, under the Healthy Workplaces, Healthy Families Act of 2014 (California Labor Code sections 245-249), employees are entitled to accrue and use paid sick leave. However, questions often arise regarding whether employees have the option to decline using company-provided sick pay and instead take unpaid leave, as well as whether employers can mandate the use of paid sick time.

By Brad Nakase, Attorney

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Can an Employee in California Choose Whether to Use Company-Provided Sick Time or Take Unpaid Leave When Calling Out Sick?

Employees are generally entitled to decide whether or not to use their accrued sick leave when taking time off due to illness. For example, an employee who is saving their sick leave for a future medical procedure may prefer to take a day off without pay if they are only mildly ill. Similarly, an employee might opt to forgo paid sick leave in order to preserve their balance for childcare emergencies or other significant personal needs. However, there are circumstances where employees may not have a choice. For instance, if an employer’s policy explicitly requires employees to use accrued sick leave for any absence related to illness or medical needs, the employee may be mandated to use their sick leave. Such policies are generally lawful, provided they comply with California’s sick leave laws and do not result in retaliation or discrimination. The California Labor Code does not explicitly require employees to use their paid sick leave if they prefer to take the time off without pay, but employer policies can dictate otherwise. Employees have the right to use sick leave without interference, but the law does not explicitly grant the right to decline it in favor of unpaid time off in all situations.

Can an Employer Mandate the Use of Company-Provided Sick Pay if an Employee Prefers to Take a Sick Day Without Pay?

Employers may establish policies requiring employees to use available paid sick leave when taking time off for illness. For example, if an employee calls out sick due to a minor cold and prefers not to use their accrued sick leave, an employer may enforce a policy mandating the use of that sick leave to ensure compliance with company leave protocols. Similarly, if an employee has a large bank of paid sick leave and requests unpaid time off instead, some employers may require the use of accrued paid sick time first. Such policies are typically lawful as long as they align with California’s sick leave laws and do not result in retaliation or discrimination against employees.

Practical Implications

  • If an employee requests unpaid time off for a sick day while they have accrued sick leave, the employer’s policies may require them to use their paid sick leave instead. For instance, an employee with a sufficient bank of paid sick leave who requests unpaid leave for a minor illness may be compelled to use the available sick leave to comply with company policies.
  • Employees should familiarize themselves with their employer’s policies or consult with HR to clarify whether unpaid time off is an option when paid leave is available. For example, some companies may explicitly state in their employee handbook that unpaid time off is not permissible if paid sick leave is available.
  • Employers must ensure that their sick leave policies comply with California law, which provides for a minimum of 24 hours (or three days) of paid sick leave per year for eligible employees. As an example, if an employer’s policy requires employees to use more than three days of accrued paid sick leave within a calendar year, it must still adhere to the provisions outlined in the Healthy Workplaces, Healthy Families Act of 2014.

Ultimately, the specific circumstances and the employer’s policies will determine whether an employee can choose unpaid leave over using paid sick time and whether the employer can mandate the use of paid sick leave. Employees are encouraged to understand their rights under California law and their employer’s specific policies to navigate these situations effectively. If disputes or uncertainties arise, employees may seek guidance from the California Division of Labor Standards Enforcement (DLSE) or consult legal counsel.

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