California Clarifies its paid sick leave frequently asked questions

The California Department of Labor Standards Enforcement (“DLSE”) recently published additional FAQs relating to the California Paid Sick Leave law. These new FAQs address questions regarding:

  • “Grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015);
  • Employee rates of pay, and
  • The impact of state law on employer attendance policies.

Grandfathered Plans

With respect to “grandfathered” plans, the FAQs explains how a “grandfathered” plan complies with the paid sick leave law. This occurs when the “grandfathered” plan meets all of the accrual requirements set forth in the paid sick leave law, plus the following two criteria:

  1. The existing policy or plan made an amount of paid leave available that could be used for at least as many paid sick days as required under the new law, and
  2. The paid leave could be used under the same conditions as specified in the new law, or that had conditions more favorable to employees, (i.e., that provided more sick days than created under the new law, or that had a more favorable accrual rate, etc.)

If all of these criteria are met, then the employer is allowed to continue to use that existing paid time off plan in order to satisfy the paid sick leave requirements of the new law.

Rates of Pay

With respect to employee rates of pay, the FAQs clarify that under a grandfathered plan, the paid sick leave law does not change how employers compensate employees for paid time off under that time when time off is take for purposes other than California paid sick leave.

Attendance Policies

With respect to attendance policies, the FAQs clarify that employers are prohibited from disciplining employees for using accrued paid sick leave. Specifically, for employers who have an attendance “points” policy, employers cannot assess “points” against an employee for an absence that is covered under California law (including the California paid sick leave law

In addition, the FAQs address what happens when an employee has exhausted his/her California paid sick leave. If an employee does not have any accrued or available paid sick leave, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, including as consistent with Labor Code section 233), and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence” for such absence, even if the employee was actually sick and/or could have used paid sick leave for the absence if he or she had any such leave accrued.

The paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes; it “protects” only an employee’s accrued and available paid sick leave as specified in the statute.

Take home for employers

It is recommended that all California employers review the updated FAQs and verify that their policies and practices comply with the new guidance.