Mandatory sick days means more headaches for employers

By September 8, 2014 October 25th, 2018 Employment Blog, Erick Becker

Erick J. Becker

Warning: if you’re a business owner or Human Resources professional, you might be tempted after reading this post to call in sick.   Come next July, all California employers will be required to provide paid sick leave to all employees – exempt and non-exempt, full time, part time and temporary. Here are the key provisions of AB 1522 which will be signed into law and go into effect July 1, 2015:

  • Employees must accrue a minimum of 1 hour of sick leave for every 30 hours worked, which is the equivalent of roughly 8 sick days per year for a full time employee.
  • However, employers may cap the total accrual at any one time to 48 hours (6 days) and may limit sick days to 24 hours (3 days) per year of employment.
  • Employees start accruing sick leave after 30 days from hire, and sick leave may be used after 90 days of employment.
  • Unused sick leave must be carried over from year to year, subject to the 48 hour cap.
  • Unused sick leave does not need to be paid out on termination.
  • Employers can set a minimum increment for using sick leave of no less than two hours.
  • If the company currently has a PTO plan that provides for at least three paid days off per year, additional sick leave need not be offered.
  • Sick leave can be used for the care of family members, including children, parents, grandparents and grandchildren.

The aspect of this legislation that has the most potential to cause legal headaches for employers, however, is the enforcement provisions.   Employees can assert that they were discriminated against for using sick days, and there is a rebuttable presumption that a termination or other employment action was unlawful retaliation if it occurs within 30 days of an employee complaining that they were denied any rights under the law.   In addition to back pay, the employee would be entitled to collect penalties of up to $4000. There are also penalties for failure to post a notice with information about paid sick days and failure to include sick leave accrual on the employee’s pay stub.

What should employers do?

Most employers that have sick leave policies will need to revisit and likely revise their policies and employee handbook to insure compliance before July 2015, particularly as it pertains to eligibility for part-time and temporary employees, accrual starting 30 days after hire, and use of sick leave to care for family members. Employers that don’t currently offer sick leave will have to devise a program that meets the minimum requirements and implement by July. All employers will need to make sure their payroll systems reflect the accrual of sick leave and post the required notices. Further, terminations closely following use of sick leave will have to be scrutinized to protect against discrimination and retaliation claims.