Paid sick leave required for employees

Calif. Labor Code §§245, 245.5, 246, 246.5, 247, 247.5, 248.5, 249 and 2810.5
Amended and added by A.B. 1522
Effective date: July 1, 2015

An employee who works at least 30 days within a year from their employment date is entitled to paid sick leave.

Upon the employee’s oral or written request, an employer is to provide paid sick leave for:

diagnosis, care or treatment of existing health conditions or preventative care for an employee or their family member; and
treatment, shelter, counseling or legal assistance for employees who are victims of domestic violence, sexual assault or stalking.

Sick leave accrues at a rate of at least one hour per every 30 hours worked. Employees may begin using their accrued paid sick leave on the 90^th day of employment.

Any unused paid sick leave is to carry over to the next year, but an employer may limit the use of paid sick leave to 24 hours or three days per year. Employers may cap accrual at 48 hours or six days per year.

An employer is not required to compensate an employee for unused paid sick leave upon the employee’s termination, resignation or retirement. However, if an employee ends their employment and is rehired within a year, their previously accrued and unused paid sick leave is to be reinstated.

The employer has the discretion to “lend” paid sick leave to an employee in advance of accrual.

The employer is required to state the amount of paid sick leave available or paid time off on:

the employee’s itemized wage statement; or
in a separate writing provided on the pay date.

Employers may set a minimum increment for the use of paid sick leave, not to exceed two hours. The employer is to pay the employee for paid sick leave by the next regular payroll period following the sick leave. The amount paid is based on the employee’s regular hourly rate. However, if the employee is paid by commission or piece rate, the rate of pay for sick leave is calculated by dividing the employee’s total wages – not including overtime premium pay – by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

An employer is not required to provide additional paid sick leave if the employer already offers a paid time off policy which:

satisfies the above accrual, carry over and use requirements; or
provides at least 24 hours or three day of paid sick leave, or equivalent paid time off, for employee use every year of employment, calendar year or 12-month period.

An employer may not require an employee to find a replacement worker to cover their time off, or discharge, demote, threaten or discriminate against an employee for using paid sick leave.

The employer is required to display in their workplace a poster created by the Labor Commissioner which states:

employees are entitled to accrue, request and use paid sick leave;
the amount of sick leave provided;
the terms of use for paid sick leave; and
that retaliation or discrimination against an employee requesting paid sick leave is prohibited and the employee has the right to file a complaint.

An employer is also required to keep and make available to the employee at least three years’ records documenting the hours worked and paid sick days accrued and used by the employee.

Additionally, employers are to include in written employment information given to new hires:

a statement that the employee is entitled to accrue, request and use paid sick leave;
notification that the employee may not be terminated or retaliated against by the employer for using or requesting accrued paid sick leave; and
a statement that the employee has the right to file a complaint against a retaliating employer.

Penalties for violations

An employer who does not display the required poster is subject to a civil penalty of $100 per offense.

If an employer unlawfully withholds paid sick leave, they are subject to a penalty equal to the greater of:

the dollar amount of paid sick leave withheld, multiplied by three, up to $4,000; or
$250.

If their violation results in harm to the employee, such as discharge, the penalty may include a sum of $50 for each day of the violation, not to exceed an aggregate $4,000.

The Labor Commissioner may file a civil action against the employer to enforce compliance.

Editor’s note — Most employing brokers hire licensees under independent contractor agreements. The new paid sick leave laws do not apply to independent contractors.

However, brokers and agents may opt to enter into an employer/employee relationship. In that case, employed licensees are entitled to paid sick days. Additionally, real estate brokers are subject to these new requirements for any non-licensed assistants or administrative staff they employ. No de minimis exemptions exist for small employers.