May 23, 2017

California Labor Commissioner Issues Guidance on Paid Sick Leave Law

The California Labor Commissioner has issued new guidance on the state’s paid sick leave law (“PSL”). The guidance answers questions concerning an employer’s use of a “grandfathered” (existing) paid time off (“PTO”) plan to provide PSL, as well as the application of employer attendance policies when employee use PSL.

The new guidance takes into consideration the effect of an employer having had a PTO policy or plan in place before the law went into effect on January 1, 2015. For example, if an existing plan made at least the same amount of paid sick days available to an employee and under the same or more favorable conditions as specified in the PSL law, the employer may continue to use the existing PTO plan and does not have to provide additional paid sick days in order to satisfy the law’s requirements.

Second, the guidance also explains that the PSL law addresses only the rate of pay. For nonexempt employees, that is the regular rate of pay for the work week in which the leave was taken, or as determined by averaging over a 90-day period. The law does not impact the rate of pay the employer must pay for days that an employee takes off under the PTO plan for purposes other than paid sick days — such as vacation or personal holiday time — which may be paid at the employee’s “base rate” of pay.

Finally, the guidance addresses the question of whether an employer may discipline an employee for taking a paid sick day or using PSL for part of a day to go to a doctor’s appointment. The guidance clarifies that if an employee has accrued sick days available, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use PSL for a partial day (e.g., to attend a doctor’s appointment). However, an employer may impose discipline for unscheduled absences that occur for reasons other than those enumerated in the law, or for which the employee does not have or does not use accrued and available PSL time.

The guidance only covers the state of California’s PSL law. It should be noted that there are myriad local ordinances and state and federal disability and leave laws that may intersect with an employer’s obligations under the state’s PSL law.

For more information, contact Jason Resnick at (949) 885-2253.