By Lisa Nagele-Piazza, SHRM-SCP, J.D. Jul 8, 2016
http://www.gosanangelo.com/news/sexual-harassment-issue-persists-37259341-5ef0-2b09-e053-0100007f3387-386087271.html
Employers in California have had a year to fine-tune their policies implementing mandatory paid-sick-leave benefits for workers in the state. However, ambiguities in the law—and new city ordinances that provide more-generous sick-leave benefits—have left some employers unsure if their policies measure up.
Starting on July 1, 2015, employers were required to provide paid sick leave to workers in California under the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA).
With some exceptions, the act covers employees who work in the state for 30 or more days in a 12-month period, regardless of whether they are full-time, part-time, temporary or seasonal workers. Covered employees must accrue one hour of sick leave for every 30 hours worked.
Employees can use the sick leave after 90 days of employment for their own illness, to care for certain family members, or for "safe time" if they are victims of sexual assault, domestic violence or stalking.
Many of the law's provisions, however, weren't clear when it was first enacted. Employment attorneys told SHRM Online that ambiguities in the law have prompted additional legislation.
Starting on July 1, 2015, employers were required to provide paid sick leave to workers in California under the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA).
With some exceptions, the act covers employees who work in the state for 30 or more days in a 12-month period, regardless of whether they are full-time, part-time, temporary or seasonal workers. Covered employees must accrue one hour of sick leave for every 30 hours worked.
Employees can use the sick leave after 90 days of employment for their own illness, to care for certain family members, or for "safe time" if they are victims of sexual assault, domestic violence or stalking.
Many of the law's provisions, however, weren't clear when it was first enacted. Employment attorneys told SHRM Online that ambiguities in the law have prompted additional legislation.
Clarification Was Needed
Thirteen days after the initial law went into effect, Governor Jerry Brown signed A.B. 304, which clarified a few aspects of the state paid-sick-leave law, said Anthony Zaller, an employment litigation attorney with Van Vleck Turner & Zaller in Los Angeles. "For example, the amendment provided for an alternative accrual method other than the one hour of paid sick leave for every 30 hours worked by the employee."
"The amendment made it possible for employers to use an alternative accrual method as long as it is on a regular basis, and the employee has no less than 24 hours or three days paid sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period."
Stephanie Lowe, an attorney with Liebert Cassidy Whitmore in San Diego, said that "while we are now aware that there are several ways to provide sick leave accruals, the language is still unclear."
However, the new bill did clarify some of the confusing aspects of the law, Lowe noted. As an example, she said it clearly states that employees have to work for the same employer for 30 days in a 12-month period in California to be eligible for paid sick leave.
Upfront Leave or Accruals?
Under the accrual method, banked sick leave must carry over to the following year. However, employers can cap accrued leave at 48 hours. They can also limit the amount an employee may use per year to 24 hours.
As an alternative to the accrual method, employers may provide 24 hours of sick leave upfront at the beginning of the year. Under this method, employees must use the leave by the end of the year. Unused leave will not carry over to the next year, but employees will be provided another 24 hours at the beginning of the new year.
"A few employers I've worked with found that it's easier to award the full amount upfront at the beginning of a 12-month period so they don't have to track accruals," Lowe said. "But I don't think one way dominates. Many employers provided sick leave prior to this, even though it wasn't required, so they continue to provide it in the same way they had before."
"Smaller employers tend to provide the sick leave in an upfront grant so that they do not have to track it every payroll period," Zaller said. "Larger employers tend to use the accrual method."
"Many payroll companies also have the function to track the accrual of paid sick leave, which makes this method very easy for any size employer to implement," he said.
Zaller said he recommends that employers check the method and process their payroll companies use to track and pay for paid sick leave. Payroll companies may be "confused about some of the legal requirements, and ultimately the liability for compliance will rest with the employer," he said.
Employers may provide the required leave as part of a paid time off (PTO) benefit, in which allotted paid-time-off days can be used for sick leave, vacation or other leave. Lowe cautioned that while other methods of providing sick leave have no requirement for cashing out when an employee leaves the organization, if sick leave is included in a PTO benefit, employees must be paid for their unused days upon their departure from the company.
Zaller said he recommends that employers check the method and process their payroll companies use to track and pay for paid sick leave. Payroll companies may be "confused about some of the legal requirements, and ultimately the liability for compliance will rest with the employer," he said.
Employers may provide the required leave as part of a paid time off (PTO) benefit, in which allotted paid-time-off days can be used for sick leave, vacation or other leave. Lowe cautioned that while other methods of providing sick leave have no requirement for cashing out when an employee leaves the organization, if sick leave is included in a PTO benefit, employees must be paid for their unused days upon their departure from the company.
Tracking Sick Leave
Zaller suggested that organizations track mandatory paid sick leave separately from any additionally offered paid time off.
Employers must show the number of sick days available on either an employee's paycheck or on a separate document provided on the same day as the paycheck.
It is important that employers comply with this requirement to include the amount of paid sick leave employees have accrued but not used, Zaller emphasized.
Local Laws Complicate Matters
In addition to complying with the state's paid-sick-leave law, employers in several California cities—including San Francisco, Los Angeles and San Diego—have or will soon have to adhere to additional local requirements.
"Typically, a local law will provide more-generous offerings than the state law," Lowe said. "So the city laws generally provide even more sick-leave benefits to employees."
"Employers have to look at the specifics of the local law and determine how it differs from the state law," she noted.
"There are many unanswered questions about the city laws, and employers should not assume that each city has the same requirements regarding different aspects of paid sick leave," Zaller said.
"Employers have to look at the specifics of the local law and determine how it differs from the state law," she noted.
"There are many unanswered questions about the city laws, and employers should not assume that each city has the same requirements regarding different aspects of paid sick leave," Zaller said.
Law on Doctors' Notes Not Clear
There hasn't been much guidance from the labor commissioner's office as to when an employer can ask for a doctor's note.
Under the paid-sick-leave law, an employee gets to choose when to use his or her allotted sick leave and how much of the allotted time to use, Lowe said. An employer can't retaliate against an employee for exercising that right.
"Employers also can't retaliate against a worker for failing to provide details about the need to use sick leave," she added.
"It isn't clear whether those requirements are limited to just the 24 hours in a 12-month period provided under the law," she said. "Pay attention to whether we get any guidance on this from the labor commissioner's office."
Review Disciplinary Policies
It's important that employers "review their polices about absenteeism, performance evaluations and other employment matters and make sure they are not taking into account an employee's use of paid sick leave in disciplinary decisions," Lowe said.
"Employers should ensure workers aren't being disciplined for excessive absenteeism when taking sick leave that's protected under the law," she added.
*For more information, please visit www.BeverlyHillsEmploymentLaw.com
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