Vedder Thinking | Articles California Corner: Achoo! New Local Paid Sick Leave Ordinances are an Epidemic in California
San Diego and Los Angeles recently joined San Francisco, Oakland, Emeryville and Santa Monica in approving their own paid sick leave ordinances, adding a layer of complexity for employers in those jurisdictions. Employers should be aware that these two new ordinances differ in key respects from California's statewide paid sick time law, the Healthy Workplaces, Healthy Families Act of 2014 (the HWHFA), and that they must now comply with both the state and local laws.
Generally, the HWHFA requires employers to provide paid sick leave to employees who, on or after July 1, 2016, work in California for 30 or more days within a year from the beginning of employment. Among other things, it provides various methods for employees to accrue sick leave, and authorizes employers to limit the use of paid sick leave to three days (24 hours) per year and cap sick leave accrual at six days (48 hours) per year.
Los Angeles Paid Sick Leave Ordinance
Effective July 1, 2016, employees who work at least two hours per week in Los Angeles, and for the same employer for 30 days or more within a year of hire, are entitled to paid sick leave. Due to ambiguities in the language of the ordinance, the effective date is arguably deferred by one year for employers with 25 or fewer employees.
Paid sick leave accrues from the first day of employment or the effective date of the ordinance, whichever is later. Employers that already have a paid leave or paid time-off policy that is at least equal to 48 hours are not required to provide additional time under the ordinance. Employees may use paid sick leave beginning on the 90th day of employment. Unlike the state law, however, which provides multiple methods of accruing sick leave, the Los Angeles ordinance provides for only two methods of accrual: (1) a lump sum of 48 hours to an employee at the beginning of each year of employment, calendar year or 12-month period or (2) one hour of sick leave for every 30 hours worked.
Further, the Los Angeles ordinance is more generous with respect to how many hours of sick leave employees may use each year and the cap on accrued sick leave. Employers can limit annual use to 48 hours (as opposed to 24 hours under state law) and can cap accruals at 72 hours (as opposed to 48 hours under state law).
The Los Angeles ordinance is also broader than state law with respect to the persons who take paid sick leave, allowing employees to take leave not only for themselves or a family member (as defined under state law), but also for any individual related by blood or affinity whose close association with the employee is equivalent to a family relationship.
The Los Angeles ordinance is, however, narrower than state law in one respect: state law does not expressly address whether employers can require a doctor's note to validate the need for the leave, but under the Los Angeles ordinance, employers may require employees to provide reasonable documentation of an absence from work for which paid sick leave will be used.
Like the HWHFA, employers need not pay out unused, accrued sick leave when an employee separates from the company, but they must reinstate the accrued, unused leave if the employee is rehired within a year. Employers are required to display the city's minimum wage and sick leave posters, and, at the time of hire, provide employees written notice of the employer's name, address and telephone number.
San Diego Earned Sick Leave Ordinance
Effective July 11, 2016, employees who work at least two hours in at least one calendar week for an employer in San Diego are entitled to accrue paid sick leave. Paid sick leave accrues from the first day of employment or July 11, 2016, whichever is later. As with state law, employers can require that employees wait until the 90th day of employment before using accrued sick leave.
Unlike state law, the San Diego ordinance provides for only one method of accrual: one hour of sick leave for every 30 hours worked. The San Diego ordinance is more generous than state law in that it does not allow for a cap for accrual of paid sick leave. All unused, accrued sick leave must be carried over to the next year. The ordinance does, however, permit an employer to limit the use of sick leave to 40 hours per year, as compared with the state law's 24 hours per year limit.
As under state law, if an employee elects to use paid sick leave, the employer may require the leave to be used in increments of at least two hours. Unlike state law, however, the San Diego ordinance is broader in terms of permissible uses for paid sick leave. Employees may use earned sick leave for their own medical care and for the medical care of certain covered family members. Employees also may use earned sick leave for themselves and covered family members for reasons associated with domestic violence, sexual assault or stalking, including medical care, counseling, relocation or legal services. In addition, employees may use leave time when their place of business, or their child's school or child care provider, is closed due to a public health emergency.
Under the San Diego ordinance, employers may require documentation for absences of more than three consecutive workdays.
Employers need not pay out unused, accrued sick time upon termination, but for employees who are rehired within six months from the date of separation, any previously accrued and unused sick leave must be reinstated. Under the San Diego ordinance, employers are required to display the city's official poster, and, at the time of hire, provide employees written notice of the employer's name, address and telephone number, and the employer's duties under the ordinance.
Employers with workers in San Diego, Los Angeles and other cities with local paid sick leave ordinances should review their paid time off and paid sick leave policies to ensure compliance with the respective ordinances and the state law. In general, where state law and the applicable local ordinance differ, the more favorable and generous requirements should be implemented. Employers with workers in multiple cities in California with local paid sick leave ordinances should consider implementing a "one-size-fits-all" policy for all California employees consistent with business needs to help reduce administrative burden. Employers that incorporate paid sick leave into their paid time off policy may want to consider creating a separate paid sick leave policy if the paid sick leave requirements are more generous than their paid time off policy and to avoid having to pay out the accrued sick leave at termination.
If you have any questions regarding the topics discussed in this article, please contact Heather M. Sager at +1 (415) 749 9510, Lucky Meinz at +1 (415) 749 9532 or any of our California Labor & Employment attorneys.
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