UPDATED as of 3/16/2020
The issue of sick leave has been increasingly discussed in the news as the specter of a pandemic related to the coronavirus (COVID-19) hangs over all Americans. On March 5, 2020, Governor Gavin Newsom officially declared a state of emergency in California after the first coronavirus death. Because the virus is transmitted from person-to-person, either through close contact or by droplets in the air after an infected person coughs or sneezes, containing it requires the quarantine of people who have been infected. This necessary step may result in financial hardship for people who are unable to work while they stay home.
Am I Entitled To Paid Sick Leave In California?
While coronavirus presents a unique concern for millions of Americans, there are a number of reasons why you may need to stay home from work because of an illness. Doing so is critical for your own health, as well as for reducing the likelihood that other people will catch the same germs. But what if you can’t afford to not work?
In California, sick leave is mandatory. If you are eligible, you can accrue paid sick leave to use when you are unable to work due to an illness or if you need to care for a family member. If your employer refuses to let you take sick leave, it is important for you to know your legal rights in this time of concern.
Eligibility For Paid Sick Leave
In California, the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) requires employers to provide at least three (3) days of paid sick leave to certain employees. Under this law, most employees who work for 30 or more days within a year after starting a job are eligible for paid sick leave. Employees accrue paid sick leave hours which can be used while they are on leave for specific reasons.
Full-time, part-time, and even temporary employees are all eligible for paid sick leave. However, certain employees are not covered under the HWHFA. This includes workers with a collective bargaining agreement (union members), certain employees in the airline industry who are covered under the Federal Railway Labor Act, and state and local government employees. These employees are exempted because they are covered by different laws, by their collective bargaining agreement, and/or through a different arrangement with their governmental employer.
In practice, the way this works is relatively simple. If you come down with the flu, for example, you will be able to use any hours that you have accrued to get paid while you are off of work. If you have accumulated 30 hours of paid sick leave, and need to miss 3 days (24 hours) of work to recover from the flu, then you will be paid for those 24 hours — and still have 6 hours of accrued leave.
How Much Paid Sick Leave Do I Get — And When Can I Use It?
Under the HWHFA, employers must provide a minimum of 24 hours or 3 days of paid sick leave. Depending on the employee’s position, they may accrue sick leave at a rate of 1 hour for every 30 or 40 hours worked. it is important to note, however, that employers can choose different methods for accrual of sick leave (i.e. earned all at once vs. earned over time), as long as the employee has no less than 24 hours of accrued sick leave per year. You may want to look at your employee handbook or ask your HR person how your company chooses to accrue paid sick hours.
Notably, some cities and in California (such as Los Angeles, San Diego, San Francisco, Santa Monica, Oakland, Berkeley) have enacted local ordinances that require anywhere from six (6) to nine (9) days of paid sick leave to employees.
Employees can start using accrued paid sick leave starting on the 90th day of employment. Unused sick time can roll over to the next year if it isn’t used. However, under California law, employers can put a cap on the total amount of accrued sick leave at 48 hours, or 6 days.
While this is the minimum for California employers, some companies may offer additional leave or more generous sick leave policies. The best way to find out about your employer’s sick leave policy is to consult with human resources or check your employee handbook.
Beyond the HWHFA, some cities and counties in California have laws that provide more benefits for sick leave. For example, in Los Angeles, all employers must provide 1 hour of sick leave for every 30 hours of work, or at least 48 hours provided at the beginning of each year of employment or 12 month period. This sick leave must be provided to all employees who work at least 2 hours in a particular week in the city for the same employer for 30 days or more in a year. Sick leave can be carried over into the next year, but may be capped at 72 hours.
Further, sick leave can be used for a number of reasons — and not just when you personally have an illness. Employees can also use sick leave to take care of family members in seeking a diagnosis, providing care, getting treatment for an existing health condition, or even for preventative care. Under the HWHFA, family members include children (including foster children, adopted children, and step children), spouses or domestic partners, parents, siblings, grandchildren, and grandparents.
In addition, if you are a victim of domestic violence, sexual assault or stalking, you can use paid sick leave. This can be used to get counseling or medical attention, to get services from a domestic violence shelter or rape crisis center, to make safety plans, or to seek relief, such as a restraining or protective order.
If you don’t have enough sick leave to care for a family member who is ill, you may be able to use paid family leave. California recently expanded its paid family leave laws, which can be used to take care of a seriously ill family member or to bond with a new child. Under Senate Bill 83 (SB83), workers in California who pay into the State Disability Insurance (SDI) program will be entitled to wage replacement for 8 weeks (instead of 6). This law will go into effect on July 1, 2020.
Can I Take Leave If My Child’s School Closes Due To Coronavirus?
School Emergency Leave:
California law also allows parents (or guardians or grandparents) to take up to 40 hours per year of non-paid leave to address a school emergency – see California Labor Code Section 230.8.
Employees are entitled to this leave as long as their employer has 25 or more employees at a given location and as long as they give notice to their employer. Notably, you must exhaust any paid sick leave, personal leave, vacation pay or other type of “paid time off” as part of that 40 days, unless your employer agrees otherwise.
Your employer can also require written documentation of the school emergency as “proof” of your participation. However, the law states that the documentation can simply be “whatever written verification . . . the school or licensed child care provider deems appropriate or reasonable.”
Thus, if your child’s school (or licensed childcare provider) closes due to coronavirus concerns, this could (and should) qualify as a “school emergency” under section 230.8. It would still be best to first check with your employer to make sure that you qualify and to give notice of your intended leave (which is required).
If an employee exercises this leave, the employer cannot demote, wrongfully terminate, refuse to rehire, suspend or discriminate against the employee in any other way due to them taking the leave.
FMLA And CFRA Leave:
Further, if you work for a company with at least 50 employees in a 75-mile radius, California law also provides 12 weeks of unpaid leave if you are suffering from (or caring for someone with) a serious health condition. This is provided for by the Family Medical Leave Act (FMLA) which is also known in California as the California Family Rights Act (CFRA). To qualify, you will need to have worked for your employer for at least 1,250 hours during the past year.
With CFRA/FMLA leave, your job is legally protected for 12 weeks, meaning your employer must return you to your same position with the same pay and benefits.
Notably, an employer cannot automatically terminate your employment as soon as your FMLA/CFRA runs out. Employers are still required under California laws to accommodate your disability or health condition (i.e. by providing additional leave if necessary) as long as it would not cause an undue burden or hardship to the employer.
What If My Paid Sick Leave Runs Out Or Isn’t Enough?
California workers can also apply for and receive wage replacement with California’s State Disability Insurance program or Unemployment Benefits. These programs are designed to replace the majority of your wages if you are disabled and cannot work or if you are laid-off or otherwise prevented from working by your employer.
The EDD has confirmed that you can qualify for State Disability Benefits if you cannot work because you have COVID-19 or if you have been quarantined due to possible exposure. The EDD also confirmed that you can qualify for Paid Family Leave if you are unable to work because you are caring for a sick or quarantined family member. PFL will provide six weeks of benefits (and will increase to 8 weeks in July 2020) to those who qualify.
Notably, Governor Newsom issued a March 4, 2020 executive order that waives the standard 7-day waiting period for unemployment and disability insurance benefits from the EDD specifically due to the COVID-19 pandemic.
What Can I Do If My Employer Violates California’s Sick Leave Laws?
In addition to providing a minimum number of paid sick leave hours per hours work, the HWHFA outlines rules for employers. Under this law, an employer cannot:
Deny an employee the right to use their paid sick leave;
Fire or threaten an employee for using their sick leave;
Demote, suspend or discriminate against an employee for using or attempting to use their paid sick leave; or
Retaliate or discriminate against an employee for filing a complaint or alleging a violation of the HWHFA, cooperating in an investigation about a violation, or opposing any practice that is in violation of the HWHFA.
This means that if you request sick leave, and your employer does not allow you to take it, they have violated the law. In addition, your employer cannot require you to find a replacement as a condition of you taking leave.
If your employer violates the HFHWA, then you may be able to file a lawsuit against them with the help of an employment lawyer. This type of claim may be based on a failure to provide paid sick leave, providing less than the minimum paid sick leave required, or not paying an employee when they take paid sick leave. In addition, if your employer retaliates against you for taking sick leave or complaining about a violation, then you may be able to file a lawsuit against them.
An employer who violates California’s sick leave laws may be liable for damages as well as equitable relief. In other words, they may have to pay you money for any losses that you have suffered, and may be required to take certain actions, like reinstating you to your previous position. Damages in this type of case may include:
Payment for any sick days where you did not receive your pay;
Back pay, plus interest;
3 times the amount of wrongfully withheld sick days, up to $4,000 (known as liquidated damages);
Administrative penalties for a violation of the HWHFA;
Attorney’s fees and costs.
While each case is unique, you may be entitled to these damages if your employer has violated California’s sick leave laws.
Consider a situation where you took sick leave after contracting bronchitis. After getting your paycheck, you realize that you weren’t paid for your sick leave. You complain to your boss, and he demotes you, which comes with a reduction in pay as well as a lower position. In this situation, you may be able to file a lawsuit against your employer for violating the HWHFA by not paying you for your sick leave and for discriminating against you after you complained.
Questions? We’re Here To Help!
Paid sick leave is an important benefit that not only protects your health, but the health and well-being of people around you. Recognizing the necessity of this type of leave, California has strict laws that govern paid sick leave. If your employer breaks these labor laws, you may be able to file a lawsuit against them.
At Odell Law, our practice focuses exclusively on labor and employment law — and we only represent employees who have faced injustice at work. We are dedicated to helping people like you whose employers have treated them unfairly, including by denying them paid sick leave. To learn more or to schedule a free phone consultation, call us at 949-833-7106 or send us an email at any time.
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