California: Labor Commission Releases Updated Paid Sick Leave FAQ

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QUESTION: If an employer already had a paid time off (“PTO”) plan that could be used for sick leave before the law went into effect in 2015, is the employer required to provide additional sick days in response to the law?

ANSWER:  No. If the provisions of the existing PTO plan are sufficient to meet, or are more favorable than, the requirements of the paid sick leave law—meaning that plan made a sufficient amount of leave available to be used as sick time and allowed the time off to be used under the same conditions as the paid sick leave law—then an employer is permitted to continue using the existing PTO plan (also referred to as “grandfathering” the PTO plan).

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QUESTION:  If an employer uses an existing (“grandfathered”) PTO plan, does the new law change the rate of pay employers must pay for PTO used for a reason other than a paid sick day?

ANSWER:  No. When compensating employees for paid sick leave, the paid sick leave law requires that employers use one of three methods to calculate the employee’s rate of pay. However, the law does not address the rate of pay for time taken off for other purposes, such as vacation or personal leave. For example, an employer may choose to pay personal holiday time at a “base rate” of pay, whereas an employee’s paid sick leave must be paid at the regular rate of pay, using one of the three specified calculation methods.

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QUESTION: Can employers discipline employees for taking a full or partial day of paid sick leave to go to a doctor’s appointment?

ANSWER:  Generally, employers are prohibited from disciplining an employee for using paid sick leave, assuming the employee has earned, unused paid sick leave available.  Therefore, some blanket employer policies that discipline employees for unscheduled absences or tardiness could be prohibited.  However, if the employee does not have any accrued, unused paid sick leave available, an employer may be able to discipline employees under those circumstances. In addition, employers are not obligated to allow employees to draw from their paid sick leave bank if the employee has an unscheduled absence for a reason not covered under the paid sick leave law.

Action Items

1. Review the updated Paid Sick Leave FAQ on the California DIR website.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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