California employers must now juggle two additional sick leave laws. Although California already has a statewide mandate requiring that all employers within the state provide their employees with paid sick leave (see March 17, 2016 blog post), several cities, including Emeryville, Oakland, and San Francisco, have passed their own ordinances imposing additional obligations on employers with employees within their city limits. Los Angeles and San Diego have now joined that list, with new paid sick leave laws going into effect as of July 1, 2016, and July 11, 2016, respectively.
Los Angeles Paid Sick Leave Ordinance
Under the Los Angeles Sick Leave Ordinance, employers must have a sick leave policy that either:
(1) allows employees who work at least two hours per week within the city and at least 30 days or more with a single employer (Eligible Employees) to accrue one hour of paid sick leave for every 30 hours worked; or
(2) grants such Eligible Employees with 48 hours of paid sick leave at the beginning of each year (anniversary, calendar, or other 12-month period).
These requirements are similar to the state mandate, which also requires that employers either allow employees to accrue sick leave or grant employees sick leave at the beginning of each year. However, unlike the state requirement, employees must be allowed to use at least 48 hours (as opposed to 24 hours) of paid sick leave each year. In addition, if the accrual method is chosen, employees must generally be permitted to accrue at least 72 hours each year (as opposed to 48 hours). Employers may not “cap” accrual at a lower number.
There is an exception, however, for employers with paid time off (PTO) policies. Employers with PTO policies need not provide any additional sick leave if their PTO policies already provide for at least 48 hours of PTO each year. Of course, employers must still allow employees to use all 48 hours each year.
Employees begin to accrue paid sick leave on the first day of employment and become eligible to use such accrued sick leave after completion of the 90th day of employment. Employers must allow employees to use sick leave for any of the purposes permitted by state law, which means that employers must allow employees to use sick leave to treat their own illness or that of a family member.
Interestingly, Los Angeles has chosen not to rely on the state’s definition of “family member” and has instead chosen to redefine the term with broader language. Under Los Angeles law, an employee must be allowed to take sick leave to care for “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” This essentially means that employees must be permitted to take sick leave to care for anyone that they subjectively consider to be “family.”
Perhaps in an effort to reign in any abuse of leave, the ordinance allows employers to require that employees provide reasonable documentation of any absence from work. However, employers should still proceed with caution when requesting such documentation. State law does not permit employers to request any documentation, at least not until after an employee has used the three days or 24 hours required by state law.
Upon termination of employment, like state law, employers are not required to pay employees for accrued but unused paid sick leave. However, if sick leave is combined with a PTO policy, any unused PTO must be paid out upon termination.
San Diego Paid Sick Leave Ordinance
Under the San Diego paid sick leave ordinance, employers must provide paid sick leave to any employee who works at least two hours in one or more calendar weeks within the geographic limits of the city of San Diego. Unlike both the Los Angeles ordinance and state law, the San Diego ordinance specifies only one method for providing such paid sick leave:
Employees must accrue one hour of paid sick leave for every 30 hours worked.
The so-called “upfront method” of providing an allotment of paid sick leave at the beginning of each year is not permitted. Employees must accrue sick leave as hours are worked.
Employees begin to accrue sick leave on the first day of employment, but employers can require that employees wait until after completing their 90th day of employment before using any accrued sick leave. Employers may also limit the total amount of sick leave that an employee may use each year to 40 hours. However, the amount of sick leave that may accrue each year may not be capped, and because all unused but accrued paid sick leave must carry over from one year to the next, this can lead to employees eventually accumulating very large sick leave accounts. This becomes particularly problematic if sick leave is granted under a PTO policy; in which case, the employee’s PTO account could not be legally capped (and would require payment upon termination).
Thankfully, the city has recognized some of these issues and is currently considering proposed changes to the ordinance. Currently, the city council is considering an amendment that would allow employers to cap accrual and/or to utilize the upfront method by providing 40 hours or five days of sick leave at the beginning of each year.
Finally, like the Los Angeles ordinance, the San Diego ordinance is also broader in terms of permissible uses. In addition to the reasons permitted by state law, employees must be allowed to use sick leave when the employer’s place of business is closed due to a public health emergency or an employee must provide child care services as a result of a school or child care provider closing for the same reasons. The ordinance also allows for sick leave to be used not only when one is a victim of domestic violence, sexual assault, or stalking but also when one’s family member is a victim of such abuse.
California now has six different sick leave laws with which employers must comply, and that list will only continue to grow. For instance, in January 2017, Santa Monica’s paid sick leave law will also go into effect. Given the complexities of the overlapping requirements between state and local paid sick leave laws, employers should carefully review and update their sick leave and PTO policies and consider consulting legal counsel to ensure compliance.