Download - LABOR & EMPLOYMENT - Davis & Gilbert LLPIn general, under these laws, paid sick time (PST) can be used for the employee s, or the employee s family member s, sickness, for the purpose

LABOR & EMPLOYMENT>> ALERT

COMPLYING WITH CALIFORNIA CITIES’ RECENTLY ENACTED PAID SICK LEAVE ORDINANCES Over the past year, several California cities have joined San Francisco and the state of California in passing their own paid sick leave ordinances. Employers in these cities must therefore make sure to comply with both state and local sick leave laws. In general, under these laws, paid sick time (PST) can be used for the employee’s, or the employee’s family member’s, sickness, for the purpose of receiving medical care, preventative care, treatment or diagnosis, and if time off is needed because the employee is a victim of domestic violence, sexual assault or stalking.

These laws generally define a “family member” to include a child, parent, spouse, registered domestic partner, legal guardian, ward, grandparent, grandchild or sibling, or the child or parent of a spouse/registered partner, except that San Francisco’s paid sick leave ordinance defines a family member to include an employee’s “designated person,” and the Los Angeles ordinance covers “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

Below is a summary of the key provisions of the PST requirements under California state law, as well as the requirements in San Francisco, Los Angeles, San Diego and Santa Monica (note that several other California cities, including Berkley, Oakland and Emeryville, have also implemented sick leave laws). These laws generally

apply to all employers, though some of the effective dates and accrual caps may vary depending on the employer’s size. Notably, the laws also contain notice posting and records requirements and preclude employers from retaliating against employees who use PST. Where a conflict exists between California law and a city ordinance, employers should follow the requirement that is more generous to employees.

DECEMBER 2016

Attorney Advertising2196

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THE BOTTOM LINE

California employers should review their employee handbooks and personnel

practices with counsel to ensure compliance with both state and local paid sick leave

laws. California employers must not assume that compliance with California’s sick

leave law alone is sufficient. Employers that operate in cities that are discussed in

this Alert may also consider implementing training for HR staff and managers on paid

sick leave requirements

FOR MORE INFORMATION Jessica Golden Cortes Partner 212.468.4808 [email protected]

Sharon Cohen Associate 212.468.4971 [email protected]

or the D&G attorney with whom you have regular contact.

Davis & Gilbert LLP212.468.48001740 Broadway, New York, NY 10019www.dglaw.com

© 2016 Davis & Gilbert LLP

>> ALERT

LABOR & EMPLOYMENT

DECEMBER 2016

California San Francisco Los Angeles San Diego Santa Monica

Effective Date

July 1, 2015 February 5, 2007

Amendments to Ordinance effective January 1, 2017

July 1, 2016 for large businesses (26 or more employees)

July 1, 2017 for small businesses (25 or fewer employees)

July 11, 2016

Implementing Ordinance effective September 2, 2016

January 1, 2017

Covered Employees

Works in California for the same employer for 30 or more days in a year

Certain exclusions apply

All employees who work in San Francisco, including part-time and temporary employees


Works in Los Angeles for the same employer for 30 or more days within a year from starting employment

Works in San Diego at least two hours in one or more calendar weeks of the year, and is entitled to minimum wage under California’s Labor Code


Works in Santa Monica for at least two hours in a particular week, and is entitled to minimum wage under California’s Labor Code


Accrual Rate

1 hour for every 30 hours worked, beginning on the first day of employment, or PST law’s effective date, whichever is later

For employees hired before January 1, 2017, one hour for every 30 hours worked after 90 days of employment or January 1, 2017, whichever date is earlier

For employees hired thereafter, one hour for every 30 hours worked beginning on the first day of employment

Same as California Same as California Same as California


>> ALERT

LABOR & EMPLOYMENT

DECEMBER 2016


Annual Accrual Cap (except where indicated)

48 hours For large businesses (10 or more employees): 72 hours

For small businesses (nine or fewer employees): 40 hours

*Floating accrual cap: Whenever employee’s accrued leave drops below cap due to usage, employee begins to accrue again

72 hours 80 hours For large businesses (26 or more employees): 40 hours in 2017, and 72 hours starting in 2018

For small businesses (25 or fewer employees): 32 hours in 2017, and 40 hours starting in 2018

Use Limits and Timing

Employers may limit use to 24 hours per year

Employees may use accrued PST after 90 days of employment

None; employers may not limit an employee’s use of accrued PST in any given year

Employees hired before January 1, 2017 may begin using accrued PST immediately upon accrual; employees hired thereaf-ter may use accrued PST after 90 days of employ-ment


Employees may use accrued PST after 90 days of employment or the PST Ordinance’s relevant effective date, whichever is later


Employees may use accrued PST after 90 days of employment or PST Ordinance’s effective date, which-ever is later

Employees can take up to the amount they have accrued at any time

Employees may use accrued PST after 90 days of employment

Carry Over Requirement

Accrued and unused PST must carry over to the following year, unless front-loading in accor-dance with applicable requirements (see below)

Accrued and unused PST must carry over to the following year, subject to the floating accrual cap

Accrued and unused or front-loaded PST must carry over to the following year, subject to the 72-hour accrual cap and 48-hour use limit per year




>> ALERT

LABOR & EMPLOYMENT

DECEMBER 2016


Front-Loading Permitted?

Yes, accrual and carry-over requirements do not apply as long as the employer provides at least 24 hours/three days of PST at the beginning of each year

Yes, but does not fully satisfy San Francisco’s PST ordinance

Front-loaded time is treated as an advance, and employee must begin accruing PST again after having worked the requisite hours during which he or she would have accrued the front-loaded PST

Starting January 1, 2017, front-loading may only occur pursuant to written policy, or must be otherwise documented to employees

Yes, the employer may front-load at least 48 hours at the start of the year; however, the employer is still required to carry-over unused sick time into the following year, which is subject to the 72-hour accrual cap and 48-hour use limit per year

Yes, an employer may satisfy the accrual and carry-over requirements as long as it provides at least 40 hours of PST at the beginning of each year

Yes, accrual and carry-over requirements do not apply as long as the employer provides the applicable accrual cap amounts at the beginning of each year

Minimum Use Increments

Employers may set a reasonable minimum increment for the use of PST of no more than two hours

San Francisco employers may require employees to use PST in one-hour increments

Starting on January 1, 2017, employers cannot require that PST be taken in increments of more than one hour, unless San Francisco’s Office of Labor Standards authorizes a larger increment, provided the increment is no more than two hours (pursuant to California law)

Same as California Same as California Silent on this issue; follow California


>> ALERT

LABOR & EMPLOYMENT

DECEMBER 2016


Notice of Use of Sick Time

May require employees to provide “reasonable” notice of PST use when the need is foreseeable, or when “practicable” when the need is unforeseeable

May require employees to provide “reasonable” notice of PST use, including two hours’ notice (or less) for unforeseeable absences; an advance notification requirement greater than two hours is presump-tively unreasonable unless there is a compel-ling justification

Employers may not unrea-sonably deny a request to use PST, and employ-ees must notify employers in advance if the need to use PST is planned, e.g., for scheduled doctors’ visits; if the need is unforeseeable, the employee need only give notice as soon as practical

May require no more than seven days’ advance notice when the need to use PST is foreseeable, and when the use is unforeseeable, as soon as “practicable”

Silent on this issue; follow California

Permissible to Require Doctor’s Note?

Unclear: Statute is silent, but California Department of Industrial Relations guidance states that requiring an employee to provide a doctor’s note to verify his/her use of PST could be construed as infringing on the employ-ee’s right to PST

Yes, as long as reason-able, but subject to California guidance

Generally, requiring a doctor’s note for an absence of more than three consecutive days is reasonable

Employers may potentially require a note where PST used to attend a medical appointment (even where absence was less than three or more consecutive days)

Yes, but subject to California guidance, for an absence of more than three consecutive work days

Employers may not require employees to provide a description or explanation of the illness or condition necessitating the employee’s leave

Yes, subject to California guidance, for an absence of more than three consecutive work days

The employer may not require that the documen-tation specify the nature of the employee’s or the family member’s injury, illness or medical condition

Silent on this issue; follow California


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LABOR & EMPLOYMENT

DECEMBER 2016


Payout Upon Termination

Not required

However, if the employee is re-hired within one year of separation, previously accrued and unused PST must be reinstated

Not required

However, if the employee separated before becom-ing eligible to accrue PST and is rehired within one year of separation, the prior period of employ-ment counts towards 90-day eligibility period

Beginning January 1, 2017, if an employee separates from an employer for any reason and is rehired within one year of separation, previously accrued and unused PST must be reinstated

Same as California Not required

However, if the employee is rehired within six months of separation, previously accrued and unused PST must be reinstated

Not required

Download - LABOR & EMPLOYMENT - Davis & Gilbert LLPIn general, under these laws, paid sick time (PST) can be used for the employee s, or the employee s family member s, sickness, for the purpose

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