California Senate Bill (SB) 616 went into effect on January 1, 2024. The new legislation expands paid sick leave (“PSL”) for nearly all California employers and employees. The law amends California Labor Code sections 245.5, 246, and 246.5, and ups the minimum required amount of PSL for California employers to 40 hours or five days, whichever is greater.
For example, if an employee works 10‑hour days, the he or she will be entitled to five days or 50 hours of PSL. Alternatively, if an employee works only six hours a day and takes five days of paid sick leave, for a total of 30 hours, the employee will still have 10 hours remaining.
Application of the New Law
This new law will apply to all employees who work at least 30 days for the same employer within a year in California. This includes the following employees:
- Per diem;
- In-home supportive services providers (IHSS); and
- Temporary employees.
Also, the employees of a staffing agency are covered by the paid sick leave law. As a result, whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees.
Employees who are exempt from the paid sick leave law include:
- Those who are employed by an air carrier as a flight deck or cabin crew member if they are compensated for time off at least equivalent to the requirements of the paid sick leave law;
- Retired annuitants working for governmental entities.;
- Railroad employees;
- Employees in the construction industry covered by a collective bargaining agreement (CBA) with specified provisions; and
- Employees partially exempt from PSL include those outside the construction industry covered by a CBA with specified provisions.
Accrual of Paid Sick Leave
SB 616 also details the way in which employee accrue paid sick leave. Employers can select any of the following methods by which employees can accrue paid sick leave:
- One hour of PSL for every 30 hours worked;
- Front loading of paid sick leave to give employees an up-front accrual of 40 hours (or five days) of PSL at the start of their employment and each 12 months thereafter; or
- At a rate other than one hour for every 30 hours worked provided that the accrual is regular and results in at least 24 hours (or three days) of PSL by the 120th day of employment and 40 hours (or five days) of paid sick leave by the 200th day of employment.
In addition an employer can require employees to work for 90 days before taking paid sick leave, or it can elect to advance PSL if not yet accrued.
If employers opt to accrue sick pay rather than front-loading it, they can impose a maximum accrual cap of 80 hours (or 10 days) of paid sick leave. Employers can restrict employees from using more than 40 hours (or five days) per year of the PSL they’ve accrued.
Employers are prohibited from limiting less than 40 hours (or five days) of accrued PSL to carry over. So, if an employee has 40 hours of unused PSL or more, at least 40 hours must be permitted to carry over to the next 12-month period.
Employers must still give employees written notice about the amount of paid sick leave they have available, such as including their current balance on their pay stubs.
Some employer plans is existence before January 1, 2015 will be “grandfathered” into the new law. This lets employers with PSL policies or paid time off (“PTO”) policies that existed before January 1, 2015 to maintain those policies and be deemed in compliance provided the accrual provides no less than eight hours (or one day) of accrued PSL or PTO within three months of employment per year; and, the employee was eligible to earn at least 40 hours (or five days) of PSL or PTO within six months of employment. The PSL also stipulates the way in which the PSL of a grandfathered plan must be paid.
If an employer has a PTO plan that employees may use for the same purposes as paid sick leave, the employer may continue to use that plan rather than a separate PSL plan, provided that it complies with all applicable minimum requirements of the new PSL law.
Local Ordinances that Requires Employers to Provide more PSL than State Law
Employer must provide PSL that’s required by the local ordinance if it is greater than the requirements of state law. If employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. However, the Labor Commissioner's Office says that the employer must provide the provision or benefit that is most generous to the employee.
The one exception to this general rule is that as of January 1, 2024, local ordinances can’t contradict the state PSL law requirements as to the following:
- The lending of paid sick leave;
- Paystub statements;
- The calculation of paid sick leave;
- Providing notice if the leave is foreseeable;
- The timing of payment of paid sick leave; and
- Whether payment of sick leave is required upon termination.
If a local ordinance contradicts the state law on these specific topics, the state law preempts the local law.
Using Paid Sick Leave
An employee is permitted to take paid sick leave for his- or herself or a family member for preventive care or diagnosis, care or treatment of an existing health condition; or for specified purposes if he or she is a victim of domestic violence, sexual assault or stalking. Family members include the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, or designated person.
Preventive care includes annual physicals and flu shots.
The employee may decide how much paid sick leave he or she wants to use (e.g., taking an entire day or part of a day). The employer can require an employee to use a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of the amount of time needed is left to the employee.
Employees must notify their employer in advance if the sick leave is planned, such as with scheduled doctors' visits. When the need is unforeseeable—as in the case of unanticipated illness or a medical emergency—the employee must only give notice as soon as practical.
Employer cannot deny an employee paid sick leave based solely on a lack of certification from a health care provider. An employee is entitled to take paid sick leave immediately upon the covered employee’s oral or written request. PSL isn’t conditioned on medical certification.