California’s laws regarding medical leaves of absences can be tricky to understand. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, HWHFA, PSL, or PFL? Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations. Assuming you knew what the abbreviations meant, do you know which protected leave applies to large employers versus small employers? Or which type of leave allows a new father to take paternity leave? What about which type of leave provides you with the right to reinstatement?
This article provides and overview of California’s sick leave laws and is part of a series discussing each type of employment leave of absence. The article discussing California’s Baby Bonding leave may be viewed here and the article discussing California’s Pregnancy Disability Leave Law may be viewed here.
What is sick leave?
Sick leave is the least protective form of a medical leave of absence available to California employees, essentially requiring employers to provide just three days of paid sick leaves per year to employees who need to miss work for a medical reason. Unlike other forms of medical leave, sick leave does not require the employee to have disability or that the employee be seriously ill.
There are two forms of sick leave in California: Kin Care and sick leave under the Healthy Workplaces Healthy Families Act (HWHFA). Although Kin Care and the HWHFA are technically separate laws, they are most easily understood as one concept and are discussed together in this article.
What is the minimum amount of sick leave that must be offered?
Only after the enactment of the HWHFA in 2015 did California require employers to offer any sick leave to their employees. Now all private and public employers must offer a minimum of 24 hours worth of paid sick leave annually -the equivalent of just three work days. While many employers offer more than the 24 hour minimum, this is voluntary and is not legally required of the employer. All but very short term or very new employees have the right to at least some sick leave under the HWHFA.
What can employees use sick leave for?
An employee does not actually need to be ill to take sick leave under the HWHFA; only a medical reason is required to use the leave. Routine medical appointments, medical diagnoses, check-ups, and any form of preventative care are all allowable reasons to take accrued sick leave. (Cal. Lab. Code § 246.5(1)).
Both the HWHFA and Kin Care allow employees to use their own accrued sick leave to care for the medical needs of certain family members. The legally recognized family members include children, parents, grandparents, siblings, spouses, and Registered Domestic Partners. (Cal. Lab. Code § 245(4)(c)(1-7)). Not included among the legally protected list of family members are in-laws, girlfriends, boyfriends, fiancés, nephews, nieces, cousins, housemates, partners, or pets. (Id.)
Sick leave may also be used by an employee who is a victim of domestic violence, sexual assault, or stalking.
What must an employee do to take sick leave?
Employees only need to submit a verbal or written request to take accrued sick leave. (Cal. Lab Code § 246.5 (a)). If the reason to take the paid sick leave is foreseeable, the employee is required to provide reasonable advance notification to the employer. (Cal. Lab Code § 246(l)). If the reason for the sick leave is unforeseeable (i.e. a sudden illness) the employee is only required to provide notice for the leave as soon is reasonably possible. (Id). Employers cannot require the employee to find a substitute or replacement employee as a precondition of taking paid sick leave. (Cal. Lab Code § 246.5 (b)).
There no requirement that employees provide their employers with a doctor’s note to verify the reason for the sick leave. (Cal. Lab Code § 246.5 (a)). Employers who require employees to provide a doctor’s note or who pry into the reason for the leave can be sued for interfering with the employee’s right to use sick leave.
What are an employer’s obligations under California’s sick leave laws?
Employers are required to grant an employee’s request to take paid sick leave if the employee has accrued sick leave available and the absence is for a legally covered purpose.
Employers are also required to document the total amount of paid sick leave on the employee’s biweekly pay-stub (sometimes called a “wage statement”). (Cal. Lab. Code § 246(i)). Unlike vacation pay or paid time off, employers do not have to pay the employee the value of the unused sick leave when the employee is fired or quits.
What are an employee’s legal rights under California’s sick leave laws?
In short, employers cannot give their employees a hard time for taking sick leave. Employers are prohibited from denying the employee the ability to use accrued sick leave, and are prohibited from firing, threatening to fire, demote, suspend or any manner discriminating against an employee for using or attempting to use sick leave. If an employee is fired, suspended, or otherwise discriminated against within 30 days of complaining about an unlawful sick leave practice there is a rebuttable presumption that the firing/suspension was retaliatory. (Cal. Lab. Code § 246.5(2)).
Employees may sue their employers for violating California’s sick leave law requirements and may seek monetary damages for lost wages and benefits, emotional or psychological damages (called “general damages”), as well as attorney fees and costs.
Do you have questions about California’s sick leave laws? Contact the Law Office of Brian Mathias.