50 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 93 Lab. Code § 234. Similarly, the San Francisco Family Friendly Workplace Ordinance, effective in 2014, prohibits retaliation for requesting time off to care for a family member, even if the employee has no sick time available. (See § 2.14.) 94 Lab. Code § 233. 95 Lab. Code § 233(a), 234. By one reading of the poorly drafted statutory language, the anti-retaliation provisions of the “kin care” statute, section 233, protect from retaliation the employee’s use of sick time for the employee’s own needs. That is because section 233 forbids retaliation against an employee for using or attempting to use sick leave “to attend to an illness or the preventive care of a family member, or for any other reasons specified in subdivision (a) of Section 246.5.” (Emphasis added.) Section 246.5(a)(1), meanwhile, addresses the diagnosis, care, preventive care, or treatment of an existing health condition for “an employee or an employee’s family member.” (Emphasis added.) 96 Airline Pilots Ass’n Int’l v. United Airlines, Inc., 223 Cal. App. 4th 706 (2014) (because trusts in question were not “bona fide separate trusts,” ERISA preemption did not apply). 97 Mil. & Vet. Code §§ 394.5 et seq. 98 20 C.F.R. § 1002.5(d)(1)(i) and DOL comments in preamble to same. See also 38 U.S.C. § 4303(4)(A)(i). 99 Haligowski v. Superior Ct. (Pantuso), 200 Cal. App. 4th 983 (2011). 100 https://sf.gov/information/understanding-military-leave-pay-protection-act (last visited Mar. 17, 2024). 101 San Francisco Labor and Employment Code §§ 15.1 through 15.8, available at https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_laboremployment/0-0-0-711 (last visited Mar. 17, 2024). 102 Id.; San Francisco Private Sector Military Leave Pay Protection Act Implementation Guidance Pub. Feb. 16, 2023, available at https://www.sf.gov/sites/default/files/2023-02/MLPPA%20FAQ_Final_2.16.23_0.pdf (last visited Mar. 17, 2024). 103 San Francisco Labor and Employment Code § 15.6. 104 San Francisco Labor and Employment Code § 15.4. 105 San Francisco Labor and Employment Code §§ 15.2, 15.4. 106 San Francisco Labor and Employment Code § 15.4. 107 San Francisco Labor and Employment Code § 15.5(b)(2). 108 San Francisco Labor and Employment Code § 15.5(b)(3). 109 Mil. & Vet. Code § 395.10(d), (e). 110 Fam. Code § 297.5. 111 Mil. & Vet. Code § 395.10(d), (e). 112 The Covid-19 pandemic drove an exponential increase in complex paid sick and personal leave mandates enacted during 2020. Nationally, 66 paid sick or personal leave mandates arose in 46 jurisdictions. California contributed most of them: about 25 paid sick leave mandates, with the total number depending on whether one counts industry-specific laws (e.g., those applying to hotel or food services employees) and contract-specific laws (e.g, those applying to airport concessionaires and city contractors). 113 https://sfgov.org/olse/public-health-emergency-leave-ordinance (last visited Mar. 20, 2024). 114 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB616 (last visited Mar. 20, 2024). 115 Id. 116 Lab. Code § 246(a). Employees partially exempt from the California Paid Sick Leave Law include employees whose employment is governed by a valid CBA that provides for payment of wages, hours of work, working conditions, overtime premiums, regular hourly rate of pay not less than 30 percent greater than the state minimum wage, paid sick leave or similar leave, and final and binding arbitration of disputes regarding the paid sick days provision. See Lab. Code § 245.5(a). However, these workers are still entitled to some paid sick leave under their CBA, and as of January 1, 2024, these employees are protected by the law’s anti-retaliation provisions, must be allowed to take sick leave for all the purposes specified in the paid sick leave law, and cannot be required to find a replacement as a condition of taking paid sick leave law. Id. To the contrary, construction employees covered by CBAs with specified provisions, certain air carrier and flight personnel, and certain public-sector working retirees are completely exempt from the California Paid Sick Leave Law. Id. 117 Lab. Code § 246(b)(1). 118 Lab. Code § 246(b)(3). 119 Lab. Code § 246(b)(2). 120 Lab. Code § 246(d), (j). 121 Lab. Code § 246(d). 122 Lab. Code § 246(f)(2). 123 Lab. Code § 246(d). 124 Lab. Code § 246(k). 125 Lab. Code § 246(c). 126 Lab. Code §§ 245.5(c), 246.5(a)(1). 127 Lab. Code § 246.5(a)(2). 128 Lab. Code § 246(l)(3).
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