©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 39 2.14 Paid Sick Leave In America generally, employers need not pay workers while they are on sick leave. In California it’s different. California has followed the lead of San Francisco, which, in 2007, became the first American city to mandate paid sick leave for private employees. Since then, California and many of its cities and counties have followed suit, with each local jurisdiction piling on to make its own peculiar mark. While the rest of the country struggles to catch up, California leads the way, thus far, in creating a confusing patchwork of paid sick leave laws. The state-wide sick leave law introduces a number of peculiarities while having no preemptive effect on local efforts to similar effect. Employers meanwhile must comply with whichever provision—state or local—that is most onerous. And during 2020, these local laws spread like a coronavirus among cities and counties seeing a need for special employer mandates to provide supplemental sick pay for Covid-related reasons.113 2.14.1 California Paid Sick Leave Law In 2014 California became the second state (after Connecticut) to impose a state-wide PSL law. The Healthy Workplaces Healthy Families Act (the California Paid Sick Leave Law) created a poster requirement, an amended Wage Theft Prevention Act Notice requirement, and a PSL entitlement provision (including specific PSL accrual provisions). The California PSL law covers virtually all employees (including part-time, temporary, and seasonal employees) who work in California for the same employer for 30 or more days within a year.114 Rate of accrual. Covered employees accrue one hour of PSL for every 30 hours worked.115 An employer may select a different accrual method so long as the accrual is on a regular basis that gives employees no less than 24 hours of PSL or paid time off by the 120th calendar day of employment, or in each 12-month period.116 The accrual rate for exempt employees is based on a presumed 40-hour workweek, except that an exempt employee whose normal workweek is less than 40 hours accrues PSL based on that employee’s normal workweek.117 Employees must be permitted to carry over all their accrued, unused PSL to the following year, but employers may cap the accrual of PSL at 48 hours or six days.118 Instead of using the accrual method, employers can choose to give covered employees at least three days or 24 hours of PSL at the beginning of each year; under this option, no one-hour-per-30-hour accrual or carry-over is required.119 The law does not require an employer to provide additional paid sick days if (1) the employer has an existing paid leave or PTO policy, (2) the employer makes the paid leave available under the same conditions as stated in the law, and (3) the existing policy either (a) satisfies the accrual, carry-over, and use requirements of the law or (b) provided PSL or paid time off to a class of employees before 2015, pursuant to a PSL policy or a PTO policy that used an accrual method different than providing one hour per 30 hours worked, so long as the accrual was on a regular basis so that an employee has no less than one day or eight hours of PSL or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days or 24 hours of PSL or paid time off within nine months of employment.120 Employers can limit use of PSL to 24 hours or three days during each year of employment (whichever is more generous).121 Employers may set a reasonable minimum increment, not to exceed two hours, for an employee’s use of PSL.122 Permitted uses of PSL. Employees become eligible to use PSL on their 90th day of employment, after which they are eligible to use PSL as it accrues.123
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