Sick Leave

As a California employee, you are entitled to certain protections when you are sick or need medical treatment, including paid sick leave. As an employee in the San Francisco Bay Area, you may be entitled to additional protections based on city ordinances. Call an employment lawyer if you have questions because sorting out the various local ordinances in the Bay Area is not as easy as it should be, particularly if you are a remote or traveling employee.

California Labor Code Section 246 protects any employee who has worked for one employer at least 30 days within the first year of employment.

Example 1: Bernie is hired as an accountant on June 1. By July 1, he has worked 30 days for his employer and enjoys the protections of Labor Code Section 246.

Example 2: Elizabeth is hired on September 21 as a cashier but is laid off at the end of the month after being employed for 10 days. She is rehired on December 1 to help with the busy holiday season. By December 20, she has been employed for 30 days within a year of her hire. She now enjoys the protections of Labor Code Section 246.

Your employer has two options:

• They can guarantee you 3 days (24 hours) of paid sick leave, available for you to use at the beginning of the year, regardless of how many hours you end up working that year.
• They can allow you to accrue 1 hour of paid sick leave for every 30 hours you work, but may cap your accrual at 6 days (48 hours).

Example 1: Pete’s employer has a policy of “front-loading” paid sick leave upon an employee’s hire. Pete is hired on August 1, and immediately has 3 days of paid sick leave he can use within the next year. He will not accrue any additional sick leave based on the number of hours he actually works.

Example 2: Amy’s employer in San Francisco uses the accrual method. Once Amy has worked for 30 days, she begins to accrue paid sick leave. From that point on, she works 40 hours a week. After 6 weeks, she has worked 240 hours, and has accrued 8 hours of sick pay.

Example 3: Joe is hired on January 1 and becomes eligible to accrue sick leave on January 31. From February through December he works 2,010 hours. His employer caps accrual at 48 hours, so Joe stops accruing additional sick leave in September. In October, Joe gets sick and uses 8 hours of his accrued leave. From that point on, he begins accruing additional leave until he reaches the 48 hour cap again.

Your employer must allow you to use up to 3 days of paid sick leave in one year if those days were frontloaded, or once you have accrued them. However, your employer also may limit your use to 3 days in one year, regardless of how much you have accrued. Unless your employer has a policy capping accrual at 6 days, your balance of unused sick time will carry over each year. While you may not be able to use it all at once, a carryover balance will help ensure paid sick leave is available in the future if your accrual slows down due to a reduction in hours or an extended leave of absence.

Example 1: Marianne’s employer frontloads 3 days of paid sick leave for all employees. Marianne is hired on March 1 and gets sick on April 1. She uses all 3 days of paid sick leave. She does not have any more sick leave available until the following March 1, when she will again have 3 days.

Example 2: Andrew is hired on January 1, 2020. His employer uses the accrual method. He begins accruing paid sick leave on January 31. The employer caps use of sick leave to 3 days in one year, but does not cap accrual of sick leave. By December 1, Andrew has accrued 70 hours of paid sick leave because he works more than 40 hours a week. He gets sick on December 5 but is only allowed to use 24 hours of what he has accrued. He has a remaining balance of 46 hours, which carries over into 2021. On January 1, 2021, his schedule is reduced to 8 hours per week. At this rate, he only accrues 13 hours by December 1. He now has a balance of 59 hours. He gets sick, again, on December 5, but can only use 24 hours. The remaining 35 hours carry over into 2022.

If your sick leave is frontloaded, you may use it immediately. If it accrues, then you must wait until your 90^th day of employment before you can use it. Between day 30 and day 90, you will accrue sick time, but your employer is not required to let you use it yet.

You must use your paid sick leave for a legitimate medical purpose, such as treatment, diagnosis, or actual illness. You may use it in connection with your own health, or for a parent, grandparent, child, grandchild, sibling, spouse, or domestic partner.

If you use your paid sick leave for a legitimate purpose, and if you use what is available to you under Labor Code Section 246 and in accordance with your employer’s lawful caps on use, then your employer may not discipline you or retaliate against you for exercising your rights, even if your doing so caused some inconvenience.

Example: Kamala is hired on September 1. Her employer frontloads 6 days of paid sick leave every year, and places no cap on its use. Kamala gets sick on September 15 and uses all 6 days of leave. When she returns, her supervisor tells her that her coworkers had to cover for her while she was gone, and this caused them to neglect their own work. He says it is disappointing that she would be so quick to take advantage of the employer’s generous sick leave policy. He promises she will be paid, as required, but asks her to be more “considerate” in the future. He says, “Let this be a warning about extended absences moving forward.” His “warning” could be seen as a threat to discharge her in the future if she continues to exercise her rights in a manner consistent with the law and the employer’s policy. This would likely be illegal retaliation.

San Francisco’s Paid Sick Leave Ordinance offers certain protections beyond those otherwise required in California. The most significant differences are:

• Accrual begins immediately upon hire.
• Employers may not cap use of paid sick leave.
• Larger employers may cap accrual at 9 days, but not 6 days.
• Accrual may not be capped within a year. If, within the same year, an employee accrues 9 days, stops accruing, and then uses 1 day, accrual will resume immediately.

Oakland, Berkeley, and Emeryville all have paid sick leave ordinances which differ in some ways from Labor Code Section 246.

If you work in the Bay Area, or anywhere in California, call an employment attorney at Spencer Young Law today for a free consultation on your paid sick leave rights.