covid 19 world

We’re Still in the COVID-19 World: Do I Have the Right to Paid Leave If I’m Affected?

Employee Rights / September 19, 2022

2022 is almost upon us. We are almost 2 years into the COVID-19 pandemic and smack in the middle of cold and flu season. Earlier in the pandemic, federal and California laws provided emergency paid sick leave that had the effect of expanding California workers’ sick leave. Those have all expired. So what protections do employees still have if they are affected?

It’s time to brush up on Paid Sick Leave Rights!

The State of California and many municipalities in California mandate paid sick leave – and these laws permit paid time off for an employee (or relative) who is ill with COVID-19. Generally, the covered family members for whom an employee can take time off to care for are: Children, parents, spouse or registered domestic partner, grandparents, grandchildren, and siblings. A few cities have laws that include a designated person as a covered family member if the employee does not have a spouse or registered domestic partner.

In California, paid sick time can be used for “preventive care” for an employee or a family member, and this includes the need to self-isolate as a result of potential exposure to COVID-19. If civil authorities recommend quarantining due to potential exposure, paid sick time may be used. There could be other situations, such as needing time off to attend a vaccine appointment or get COVID testing, where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care.1

Employers can generally require employees to provide written verification from a medical provider if paid sick leave is needed for more than three days. However, the better practice these days for employers is to be flexible about the timing and nature of the medical documentation, given that medical providers have been overwhelmed during the pandemic.

If you believe your rights have been violated, contact us today!

The practical aspects of COVID-19 leave and getting paid during leave are complex and evolving. Your options will depend on your individualized circumstances, such as where in California you live, your employer policies, and the size of your workplace.

Please be aware that Paid Sick Leave and job-protected leave are two distinct sets of laws. For example, California enacted a new protection after the pandemic for caregivers of children, where employees at worksites containing at least 25 employees can take job-protected leave to deal with a child care of school emergency, including COVID-19 closures. This allows up to 40 hours of job-protected leave, but how much of it can be paid depends on the employee’s accrued paid sick leave, paid vacation or PTO, and the availability of unemployment insurance.

We have collected more information on California state and city-level paid sick leave laws here.

Know Your Rights: California and Municipal Paid Sick Leave Laws

California State Level Paid Sick Leave

The “Healthy Workplaces, Healthy Families Act of 2014” went into effect on July 1, 2015. The law mandates paid sick leave for employees who work in California for 30 or more days within a year from the beginning of employment. Employees, including part-time and temporary employees, earn one hour of paid leave for every 30 hours worked. The California law applies to all employers regardless of size.

Upon oral or written request, paid sick leave is required under California law for:
 
(1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
(2) For an employee who is a victim of domestic violence, sexual assault, or stalking, taking time off from work to obtain or attempt to obtain any relief to help ensure the health, safety, or welfare of the victim or his or her child.
 
California paid sick leave does not currently cover time off needed because of closure of the employee’s place of business or their child’s school or childcare, due to a public health emergency. In 2019, a bill to amend the state’s sick leave law was proposed in the Assembly that included an amendment to cove sick leave due to public health emergency closures, but the bill did not get enough traction and died in the legislative process.
 
Paid sick leave must carry over from year to year, but employers can place a cap on accrual of 48 hours. Employers can limit an employee’s use of sick leave to 24 hours per year. Employers can also require employees to take sick leave in at least two-hour increments, but not more.
 
The law does not apply to employees covered by qualifying collective bargaining agreements, in-home supportive services providers, and certain employees of air carriers.
 
California’s sick leave law allows employees to take sick leave for their own health condition or the health condition of a family member, including preventative treatment. Employees may also take sick leave if they are victims of domestic violence, sexual assault, or stalking.
 
A sick leave poster must be displayed at the workplace. The amount of available sick leave must be recorded on each paystub or in some other written form. Employers must keep records of sick leave accrual and use for three years. If an employer has an “unlimited paid time off policy, the notice, itemized pay stub or separate written statement provided with the payment of wages meets this requirement by indicating the paid sick leave is “unlimited”.
 
In general, an employer may not discipline an employee for using accrued paid sick leave. Depending on the circumstances, however, the issue may be more complex and may require more analysis. Generally speaking, 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 paid sick leave for a partial day (e.g., to attend a doctor’s appointment), and may not discipline the employee for doing so.
 
Labor Code section 234 provides that “[a]n employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233.” Many employers have attendance policies under which employees may be given an “occurrence” or similar adverse personnel action (which is a form of discipline with potentially negative repercussions) if the employee has an unscheduled absence or provides insufficient notice of an absence. These policies may be unlawful if they count using sick leave as an absence.
Certain cities in California have their own paid sick leave requirements that provide additional benefits to employees. In general, employers must follow whichever rule is more generous to employees.
 
Berkeley, California Paid Sick Leave
 

The City of Berkeley enacted the Paid Sick Leave ordinance on Aug. 31, 2016. The law became operative on Oct. 1, 2017. It requires that all employees, including undocumented workers, earn one hour of paid sick leave for every 30 hours worked. Small business employers with fewer than 25 employees may cap an employee’s accrued paid sick leave at 48 hours and may cap the use of paid sick leave to 48 hours per year. Employers with 25 or more employees may cap an employee’s accrual of paid sick leave at 72 hours, but may not cap how much paid sick leave an employee uses in a calendar year.

The requirement may be waived in a bona fide collective bargaining agreement if the waiver is explicitly set forth in clear and unambiguous terms.
 
Accrued, but unused leave carries over from year to year — whether calendar or fiscal year — but cannot exceed the cap.
 
Covered employees can use the leave for physical or mental illness, injury, or a medical condition; obtaining professional diagnosis or treatment for a medical condition; other medical reasons, such as pregnancy or obtaining a physical examination. Leave can be used for the employee’s own need or to care for a family member (child, parent, legal guardian, ward, sibling, grandparent, grandchild, spouse, registered domestic partner) or a designated person if the employee does not have a spouse or registered domestic partner and designates a person for whom leave may be used.
 
Leave cannot be used for reasons related to domestic violence, sexual assault, or stalking. However, as employers must comply with all applicable laws, employees will be able to use state-accrued leave for such purposes.
 
Berkeley allows employers to take reasonable measures to verify or document that leave was used for a permitted purpose. Employers, however, cannot require employees to incur documentation or verification expenses exceeding $15.
 
Wage statements or required writings that must be provided when wages are paid must include the number of accrued paid sick-leave hours. Employers are not required to payout accrued but unused paid sick leave when employees are terminated, resign, retire, or otherwise separate from employment.
 
Employers must conspicuously post at any workplace or job site in Berkeley where any employee works the city-created notice informing employees of their paid-sick-leave rights. The notice must be posted in any language spoken by at least five percent of employees at the workplace or job site.
 
Employers must keep employee payroll records for a period of four years that identify hours worked, wages paid, and paid sick leave accrued.
 
Employers cannot retaliate or interfere with any person exercising protected rights under the ordinance.
 
Emeryville, California Paid Sick Leave
 

Emeryville’s city ordinance requiring paid sick leave for most employees — full-time, part-time, and temporary — working within the city limits became effective on July 1, 2015. The municipal ordinance built upon the State of California’s requirement that employers provide paid sick leave to both full-time and part-time employees and exceeds state requirements.

Workers accrue one hour paid sick leave for every 30 hours worked. Employees of small businesses — 55 or fewer employees — may accrue 48 hours of paid sick leave a year, and employees of large businesses — 56 or more employees — may accrue up to 72 hours a year.
 
Employees may use the paid sick leave to care for their own illness or condition, a family member’s illness or condition, or their designated individual. Additionally, the employee can use this leave to care for a service dog.
 

Oakland, California Paid Sick Leave

Oakland’s paid sick leave law became effective March 2, 2015. Oakland employees — part-time, full-time, and temporary — accrue paid sick leave at the rate of one hour for every 30 hours worked. Employees are eligible for paid sick leave if they perform at least two (2) hours of work in a particular week (also referred to as a “workweek”). Small businesses (fewer than 10 employees) may cap accrued sick leave at 40 hours, and all other businesses may cap accrued sick leave at 72 hours. Paid sick leave accruals carry over from year to year.

Employees may use their leave to care for themselves or an immediate or extended family member. Additionally, employees who do not have a spouse or registered domestic partner are given a 10-day designation period after accruing the first hour of sick leave in order to designate an individual they would like to be covered under this policy.
 
The Oakland ordinance includes an anti-retaliation provision that prohibits employers from discharging, reducing compensation, or otherwise discriminating against an employee for asserting his or her rights.
 
Employers are required to maintain records of wages and paid sick leave accrual and use for at least three years, and are required to provide a copy of these records to an employee upon the employee’s reasonable request.
 
Employers are required to post a notice informing employees of their rights under the new law and must give current employees and new hires written notification of their rights as well.
 

San Francisco, California Paid Sick Leave

Under the San Francisco Paid Sick Leave Ordinance, employers must provide paid sick leave to every employee who performs work either full or part-time in San Francisco. Paid sick time begins to accrue 90 days after the employee’s first day of work. Employees earn 1 hours of paid sick leave for every 30 hours of work. Sick leave is calculated in hour-unit increments, not in fractions of an hour. For employers with less than 10 employees, the required paid sick leave is capped at 40 hours. For employers with 10 or more employees, paid sick leave is capped at 72 hours.

Sick leave time earned does not expire and carries over to the next year. However, an employee can use as many sick leave hours in one year as they wish, so long as they have not reached the total cap.

Sick leave can be taken for illness, injury or to seek medical treatment or diagnosis for the employee, a family member or other designated person. If the employee does not have a spouse or registered domestic partner, they may designate one person. An employee may change the designated person once per year within 10 days from when sick leave begins to accrue.

Los Angeles, California Paid Sick Leave
 

The sick leave law for city of Los Angeles went into effect on July 1, 2016 for large employers — those with 26 or more employees — and on July 1, 2017 for smaller employers — those with 25 or fewer employees. The law allows employees to take up to 48 hours of paid sick time per year.

An employer may provide paid sick leave either by providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period or by providing the employee one hour of sick leave per every 30 hours worked.
 
An employer shall provide paid sick leave upon the oral or written request of an employee for themselves or a family member or for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Paid sick leave may be used for the purposes of preventive care or diagnosis, care, or treatment of an existing health condition, or for specified purposes of a victim of domestic violence, sexual assault, or stalking.
An employer may require documentation to substantiate the need for leave only after an employee has used more than three consecutive days of sick leave.
 
The exemptions to the California law do not apply. Thus, employers exempted from the California law will still need to comply with the Los Angeles Ordinances. This includes providers of publicly funded in-home supportive services, some employees covered by collective bargaining agreements, certain employees of air carriers, and retired annuitants working for governmental entities.
 
Retaliation by employers against employees for taking advantage of the law is prohibited.
 

San Diego, California Paid Sick Leave

San Diego’s sick leave law went into effect on July 11, 2016. Its coverage is broader than the state law, notably in that it covers the need for time off due to public health emergencies resulting in the closure of the employee’s worksite, childcare provider, or child’s school.

Employers must provide each employee with earned sick leave. Employees accrue no less than one hour of earned sick leave for every 30 hours worked within the geographic boundaries of the city. Employers may cap the total accrual of sick leave at 80 hours. Any unused accrued earned sick leave must be carried forward to the following benefit year.
 
Employers may limit an employee’s use of earned sick leave to 40 hours in a benefit year.
 
Employees may use earned sick leave for their own medical care or for the medical care of a family member.
 
Employers have to post a notice in the workplace informing employees of their rights to the earned sick leave, including information about the accrual and use of earned sick leave, the right to be free from retaliation for taking advantage of the leave.
 
Santa Monica, California Paid Sick Leave
 

Santa Monica’s paid sick leave law went into effect on Jan. 1, 2017. The beachfront community was quick to point out that its law was more generous than existing state law requirements on sick leave. Employees, which includes full-time, part-time, and temporary workers, accrue 1 hour for every 30 hours worked. Employees can earn up 40 hours for small businesses (25 or fewer employees), and 40 hours for larger businesses (those with 26 or more employees).

Employees can use the leave to recover from an illness, for treatment involving an illness and for preventive care for the employee or a family member.
 
Employers can front load sick leave at the start of the fiscal, calendar or anniversary year. Employees can carry over unused accrued leave up to 32 hours for small businesses and 40 hours for large businesses.
 
The ordinance prohibits retaliation against employees who take advantage of the leave.

[1] https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm (last visited December 9, 2021).