The Press-Enterprise - September 6, 2015

The Healthy Workplaces, Healthy Families Act (AB 1522), commonly referred to as the mandatory sick leave law, went into effect in California on July 1. While the premise of the law is simple – California employers must provide paid sick leave benefits to their employees – the implementation is not. The following five tips will help employers navigate the uncertainty of the law.

• Check your current sick leave policy (if you have one) because it may not be sufficient.

One of the most common sick leave traps is the misconception that a pre-existing sick leave policy that provides more leave than the law requires automatically complies with the law. To fully comply with the law, the sick leave policy must, among other things, permit sick leave to be used for the diagnosis, care or treatment of an existing health condition, or preventive care, for the employee or a family member.

A family member includes grandchildren, grandparents and siblings. If your pre-existing sick leave policy does not allow the employee to use sick leave to take his grandchild to get a flu shot, your policy violates the law.

• Make sure that your attendance policies do not impinge on mandated sick leave.

Employers routinely have automatic termination policies for employees who are a “no-call/no-show” for a certain number of days, or attendance policies that automatically impose discipline on employees who do not provide adequate notice when calling in sick.

The new sick leave law requires an employee to provide “reasonable” advance notice to his employer of his need for sick leave, and if that is not possible, then to provide notice to his employer “as soon as practicable.”

The law also prohibits employers from disciplining employees who use sick leave.

Accordingly, before an employer automatically disciplines an employee for an attendance issue, the best practice would be for the employer to contact the employee and determine if the attendance violation was caused by the use of sick leave. An employer who simply terminates for an attendance violation without first confirming that the employee was not using his mandated sick leave risks a retaliation claim.

• Don’t ask for a note or medical certification unless Family and Medical Leave Act (FMLA) leave is at issue.

The new sick leave law does not allow employers to request a doctor’s note from an employee who is utilizing his sick leave, regardless of the purpose of the note (e.g. confirm illness, release back to work). Notably, this limitation does not affect the employer’s ability to seek medical certification under the FMLA. Employers must be cognizant of the distinction and only seek a note or medical certification when dealing with FMLA leave.

• Check if your previous accrual-based policy is compliant.

On July 14, AB 304 was enacted as urgency legislation, providing amendments to and clarifications of AB 1522. One particularly significant change was the exception to the minimum accrual requirement under the sick leave law. If an employer had a sick leave policy prior to Jan. 1, the employer can maintain its accrual method so long as the accrual is on a regular basis so that an employee has no less than one day or eight hours accrued sick leave within three months of employment of each year, and the employee was eligible to earn at least three days or 24 hours of sick leave within nine months of employment.

• When an employee does not get a regular paycheck (piece rate, etc.), use an average to calculate sick leave.

Calculating the value of sick leave per hour is complicated for employees who do not receive standard paychecks. In order to calculate the value of sick leave per hour, the employer should divide the employee’s total wages (not including overtime premium pay) by the total hours worked in the full pay periods of the prior 90 days of employment. This will require some employers to start tracking the hours worked by employees.

As courts begin to interpret the new law, employers will be provided with additional guidance on how to ensure compliance. Until then, when in doubt, it is best for employers to consult legal counsel for assistance in navigating the mandatory sick leave law.

* This article first appeared in The Press-Enterprise on Sept. 6, 2015. Republished with permission.