Calling in Sick? What You Need to Know About California’s Sick Pay Laws

Employees often have questions about how much sick time they’re entitled to, the rate at which it’s paid, when they’re allowed to take sick leave, and whether their employer can retaliate against them for taking sick leave. This article briefly tackles these four questions. For answers about your employer’s specific policies and your sick pay rights, feel free to contact us for a complimentary consultation.

1. How Much Sick Leave Are California Employees Entitled To?

Simply put, it depends. California has enacted minimum standards by which employers must abide when it comes to sick pay. On top of that, the city you work in may have sick pay requirements that exceed the minimum requirements established by the state. Employers are also free to adopt sick pay policies that exceed state or city regulations. That is why it is important that you carefully read your employer’s sick pay policies to determine how much sick pay your employer allows.

At a minimum, under current California law, most employees who work for the same employer for 30 or more days within a year from the commencement of employment are entitled to sick pay.[1] The Labor Code provides that employees accrue 1 hour of sick pay for every 30 hours worked. However, employers have some flexibility in using different accrual methods, as long as the accrual is on a regular basis so that an employee has at least 24 hours of accrued sick leave (or paid time off) by their 120^th calendar day of employment or each calendar year, or in each 12 month period, and at least 40 hours of accrued sick leave (or paid time off) by their 200^th calendar day of employment or each calendar year, or in each 12 month period.

Employers are allowed to limit the amount of sick pay earned in one year to 40 hours or 5 days.[2] Sick leave may carry over from one calendar year to the next, but employers can choose to cap the maximum amount of sick leave to 40 hours or 5 days in each year of employment.

Under California law, employees must be allowed to use their sick leave no later than the 90^th day of employment.[3] That means that although you are accruing sick leave, your employer may require you to wait until you have worked 90 days before you are allowed to use it.

Employers are required to provide you with a written notice that states the amount of sick leave you have available. This information is commonly found on wage statements.

Some employers may choose to use a Paid Time Off (“PTO”) policy instead of a sick time policy. This is permitted, as long as the employer meets the minimum requirements for the amount of leave employees may use for sick time, and the PTO policy meets other requirements laid out by statute.

2. How Does Sick Pay Get Calculated?

The rate at which sick leave is paid varies, but employers must use one of the following methods:

• For non-exempt (hourly-paid employees): The employer may calculate sick time pay at the regular rate of pay for the workweek in which the employee uses the paid sick time, regardless of any overtime hours worked;
• For non-exempt (hourly-paid employees): The employer may calculate sick time pay by dividing the employee’s total wages (not including overtime pay) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; or
• For exempt (salaried employees): The employer must calculate sick time pay in the same manner as the employer calculates wages for other forms of paid leave time.[4]

3.What Events Qualify for Sick Time?

There are a number of uses for which you can use your sick leave. These include:

• The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
• Family members include: parents, children, spouses, registered domestic partners, grandparents, grandchildren, siblings or designated persons.
• To obtain a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the employee or a family member of the employee.
• To avoid smoke, heat, or flooding conditions created by a local or state emergency for agricultural workers.[5]

4. Can Your Boss Retaliate Against You for Taking Sick Time?

It is against the law for an employer to retaliate against you for using accrued paid sick leave. Specifically, the Labor Code provides:

An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article. [6]

Has your employer refused to let you take accrued sick leave, or retaliated against you for using accrued sick leave? Call or e-mail us today for a free consultation.