California: It’s the Golden State … for Paid Sick Leave Mistakes!

By now, all California employers should be aware of the California Healthy Workplaces, Healthy Families Act (HWHFA) of 2014 that went into effect July 1, 2015. With no small employer carve out, the act applies to private and public employers regardless of size. Although many employers are mindful of the act, there still remains some confusion regarding the policy and compliance amongst employers. Need some help?  HR Daily Advisors, Justin Scace, lays out the facts.

Wooden Mile signpost to California

 

Welcome to the Republic of California,” says Allison West, Esq., SPHR, SHRM-SCP, “Or, as some like to say, the People’s Republic of California.” The Golden State is known for confounding many an HR professional with its uniquely labyrinthine employment law codes, and West shared her advice regarding developments in California legislation at the Society for Human Resource Management’s (SHRM) Annual Conference and Exposition held recently in Las Vegas.

No one in the room had an answer for that question. However, West had the facts regarding paid sick leave compliance.Addressing the large crowd gathered to hear her speak on June 30, West warned: “Your life will change dramatically on July 1, 2015” (the very next day). On this date, the new paid sick leave law takes effect. West notes that several “fixes” to this law will most likely follow on July 18, so why wasn’t the deadline to comply put on hold?

Paid Sick Leave Is Here!

Under the Healthy Workplace, Healthy Families Act (HWHFA), covered employees are qualified for paid sick leave as of July 1, says West. An employee is qualified under this legislation by:

  • Working for an employer on or after January 1, 2015;
  • Working for at least 30 days within a year in California; and
  • Satisfying a 90-day employment period before he or she can actually take any sick leave.

This includes all of your part-time, temporary, and/or seasonal employees, adds West. Of course, there are most likely questions among California HR professionals … and not many clear-cut answers. West offered these examples:

  • Does that mean 30 days “ever”? This is unlikely.
  • Does it mean 30 days “per year”? Probably, says West.
  • For any employer? Again—unlikely.
  • For the same employer? Well … the answer to this is “probably.”

That’s Accrual

As if these only semianswered questions didn’t seem cruel enough for HR in California, there is also the matter of accurate recordkeeping and accrual of paid sick leave among all employees. Paid sick days accrue at the rate of not less than 1 hour per every 30 hours worked, says West, and this accrual begins either:

  1. When employment starts, or
  2. On July 1, 2015, whichever is later.

You’ll notice that the regulation is not built around a standard 40-hour workweek. West clarifies that an employee who works 40 hours per week accrues 1.33 hours per week, or approximately 9 days per year. However, the employer may, by policy, cap total sick leave accrual at 48 hours (or 6 days’ worth of work).

Also, West states that in most California municipalities (San Francisco is one exception), accrued sick leave must carry over to the following year. At this, one attendee mentioned that her company pays out sick leave accrual at the end of the year to avoid carryover and asked West for her opinion on this. With a smile, West said she could recommend a good lawyer—such a policy won’t fly under the new law.

When Can an Employee Start Calling In Sick?

Employees may begin using accrued leave on their 90th day of employment. However, with notice (this is important!), the employer may limit the amount of sick leave actually taken in a single year to 24 hours or 3 days—even if more time has been accrued. Partial-day use of sick leave is acceptable, but an employer may require at least 2 hours of leave to be used in a given instance.

What can paid sick leave be used for? There are several situations that may be applied, says West:

  • If the employee is ill;
  • If an employee’s family member is ill; or
  • Other certain situations, including:
    • Domestic violence,
    • Sexual assault, or
    • Stalking.

Don’t forget your part-time employees when it comes to sick leave—and be careful with calculating their hours, says West.

What About Lending/PTO/Paying Out?

Yes, it’s permissible for an employer to “lend” an employee sick leave before accrual, says West—but it’s at the company’s discretion, and (as with everything else surrounding this law) the employer must ensure proper documentation.

For organizations that use a paid-time-off (PTO) system, West says that it’s permissible for the employer to offer more time and usage than is provided for in the paid sick leave law—but not less. Be sure your PTO policy is in writing, and compliant plans must:

  • Provide the same hours for usage;
  • Allow leave to be taken for the same purposes as under the paid sick leave law; and
  • Also still comply with all recordkeeping and notice requirements as outlined by California state law.

When it comes to paying out for sick leave, West already established that it cannot be paid out to current employees in order to prevent carryover of accrued time to the next year; however, upon an employee’s termination, resignation, retirement, or other separation from employment, and employer does NOT need to pay out for accrued, unused sick time. West notes that this is different than unused vacation time, which MUST be paid out.

Notice Is Necessary! And Help Is Available

Employers are required to notify employees of their paid sick leave rights under the HWHFA. West says to:

  1. Get your posters up!
  2. Have an individualized Notice to Employee that includes paid sick leave information. This must be provided to new employees upon hire, and you must have provided it to existing employees by July 8. (The DIR provides a sample form for this notice on its website).

This all probably feels like a lot to keep track of, and HR professionals are sure to have more questions. West advises all to visit the DIR website for clarification and frequently asked questions at http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm.

Oh, and don’t forget, says West—sometimes local laws come into play with California paid sick leave, too (e.g., San Francisco, Oakland, and San Diego). If an employer is subject to one of these laws, it must provide whichever benefits—either state or local—are the more generous.

California HR, we wish you the best of luck!

 

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