Updated on April 19th, 2023

When Can I Use Sick Time In CA? How does sick time work in California?

As a fashion graduate, Jenny is thrilled to have just started a sales job at Chanel. Unfortunately, she catches colds easily and often needs to take a sick day. Jenny is curious to know the company’s sick-day policy so that she understands how many paid sick days she is allowed.

Brad Nakase, Attorney

Email  |  Tel 888-600-8654

How to calculate sick time in CA?

Under California’s paid sick leave law, an employer is required to pay an employee for sick leave taken according to any of the following calculation methods:

  1. Paid sick time is calculated just like the regular rate of pay
  2. Paid sick time is calculated by dividing the employee’s total wages (not including overtime) by the total hours worked during the previous 90 days of employment
  3. Paid sick time for exempt employees is calculated in the same manner as other forms of paid leave

To summarize, time taken off as paid sick leave should be paid at the regular rate of pay.

Example: Georgiana is paid at a rate of $25 per hour, eight hours each day. This means she makes two hundred dollars a day. When she catches a cold and takes a sick day, she should be compensated at the same rate. For the day that she is sick, she should still earn two hundred dollars.

An employer is not allowed to discipline an employee for using accrued paid sick leave. That said, the issue is not always that simple. According to the paid sick leave law (Labor Code Section 246.5, subdivision (c)(1)):

  • An employer must not deny an employee the right to use earned sick days
  • An employer must not threaten to fire or discipline an employee for using earned sick days
  • An employer must not retaliate against an employee for filing a complaint about a violation of the rights to use sick days
  • An employer must not retaliate against an employee for participating in an investigation about a violation of sick day rights

If an employee has earned sick days available, an employer cannot prevent that employee from using his or her sick leave. This includes the right to use paid sick leave for part of a day, such as for a doctor’s appointment. The employer may not punish the employee for doing this.

At many workplaces, an employee may be given an “occurrence,” or citation, if he or she has an unplanned absence or doesn’t provide enough notice of that absence. However, under the paid sick leave law and Labor Code, if an employee uses his or her paid sick leave, it is unlawful for an employer to give an “occurrence.” This would count as disciplining the employee for using paid sick leave.

On the other hand, if an employee does not have any available paid sick leave, and he or she takes an unapproved absence, the paid sick leave law does not stop the employer from giving that employee a citation. This is the case even if the employee is legitimately sick or if the employee chose not to use any accrued sick leave. In essence, the condition of being sick does not protect employees. The law only protects employees’ right to use paid sick leave.

The paid sick leave law requires that an employer give paid sick leave for the following purposes:

  • Diagnosis, care, or treatment of a health problem concerning an employee or an employee’s family member
  • Care for an employee who is a victim of domestic violence or sexual assault

According to the Labor Code, an employer is not required to let an employee use paid sick days for any other reasons than the above.

If an employee is absent for eight hours due to illness (one full day) but only uses four hours of available leave (one half day), the employee is eligible to receive discipline, such as a citation.

Examples:

  • Luella has one day of sick leave available to her. When she catches the flu, she is forced to take two days off work. Her employer issues her a citation for taking more sick leave than is available to her.
  • Francis has four hours of sick leave available to him. When he schedules his annual eye exam, he ensures that he will not take more than four hours off to go to the appointment.
  • Colin catches a bug and chooses to stay home in bed for the day. However, he decides to use only four hours of sick leave despite being gone the whole day. His employer issues a citation for not using sick leave to excuse an unscheduled absence.

Free Consultation

0 + 3 = ?

What Is A Hostile Work Environment?

The law defines an unlawful hostile work environment to mean when a superior or coworker communication or behavior that is offensive, intimating, or discriminate on the basis of gender, religion, race, ethnicity, etc.

Can you take unpaid time off in California?

There is no legal requirement in California that an employer provide its employees with either paid or unpaid vacation time. However, the federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave per year.

DFEH Right to Sue

To file a lawsuit for discrimination, you must file a complaint with DFEH and obtain a Right-to-Sue notice.

Is It Illegal To Not Pay Overtime?

Yes, it is illegal for employer to not pay overtime because California law requires that employers pay overtime, whether authorized or not.

What Is Rate Pay Meaning?

The meaning of pay rate is the average hourly rate an employee is paid calculated by dividing the total pay for employment in a work week by the total number of hours actually worked.

California Break Laws

Under California law, non-exempt workers are entitled to two paid 10-minute rest breaks and one unpaid meal break during their eight-hour shift. 

Not Getting Paid for Work I Have Done

Workers who have not been paid for work have the right to file a claim with the federal and state Department of Labor for unpaid wages.

California Overtime Law

Under California overtime law, an employee who works over eight hours a day or over forty hours per week is entitled to overtime pay at one and one-half times the regular rate of pay.

Who is exempt from overtime pay?

As of 2023, to be exempt from overtime pay, any employees who are paid at least $62,400 per year and work are primarily professional, executive, creative, managerial, or intellectual and require the exercise of independent judgment.

Can Previous Employers Talk Bad About You?

There are no state or federal laws prohibiting what a previous employer can or cannot say about a former employee. However, previous employers are not permitted to make up lies to damage your reputation and make it difficult for you to get another job.

Can An Employer Cut Your Pay as Punishment?

Employers cannot cut hours to retaliate against employees. Cutting the hours of an employee should never be used as discipline or in an attempt to make an employee quit. 

California Random Drug Testing Law

Random drug testing is not permitted in California, and employers must give their employees notice before a drug test is given.

What happens if you get caught working under the table?

Generally, it is not illegal for your employer to pay you in cash. However, if the employer paid you under the table and did not report your earnings, you may be entitled to money damages under California Labor Code 226.

ADA Proof of Disability

An employer has no right to ask an employee to provide proof of disability unless the employee requests a reasonable accommodation and the employer does not believe disability exists.

FMLA Retaliation and Wrongful Discharge

An employer is prohibited from retaliating, interfering with, restraining, or denying an employee’s exercise of any FMLA right. If an employer wrongfully terminates an employee for FLMA taking medical leave, the worker could have a lawsuit against the employer.

Per Diem Employee Rights

A per diem employee is a worker who work on an as needed basis. A per diem employee does not have a regular schedule or shift but instead works hours as assigned.

105
© Copyright | Nakase Law Firm (2019)