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

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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.

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