Understanding San Diego's New Sick Leave Law
Effective April 1, 2015, employers are required to provide paid sick leave to any employee (defined as an individual entitled to payment of a minimum wage) who in one or more calendar weeks of the year performs at least two hours of work within the geographic boundaries of the City of San Diego. There is no requirement that the employer be headquartered in San Diego, or even in California. Nor is there a requirement that the employee resides in or regularly works in San Diego or California.
Here are the general rules:
1. Employees will earn one hour of paid sick leave for every 30 hours worked within the geographic boundaries of the City, with a maximum accrual of 40 hours per year. Fractional sick leave is not earned for partial hours worked. Earned Sick Leave must be compensated at the same hourly rate or other measure of compensation as the employee earns from his or her employment at the time the employee uses sick leave. Bona fide ndependent contractors are not entitled to paid sick leave. You may prohibit an employee from using sick leave until after ninety (90) calendar days of accrual.
2. Exempt employees are eligible for sick leave, and are assumed to work forty hours in each work week for purposes of sick leave accrual unless their regular work week is less than forty hours, in which case sick leave accrues based upon that regular work week.
3. Employers may set a reasonable minimum increment for the use of sick leave, not to exceed two hours.
4. Employees will be allowed to carry over unused sick leave to the following year, but employers are not required to pay out unused sick leave upon the employee’s separation from employment. Employers may limit an employee’s use of sick leave to 40 hours per “benefit year” (a regular and consecutive twelve month period).
5. You may already be in compliance, if your current sick leave or paid time off policy is as or more generous than the San Diego law.
6. Previously accrued sick leave that was not used or paid out must be reinstated when an employee is rehired by the same employer within six months of a separation from employment and that employee immediately is entitled to use that accrued sick leave.
7. An employee may use sick leave for any of the following reasons:
(1) The employee is physically or mentally unable to perform his or her duties due to his own illness, injury, or a medical condition;
(2) The absence is for the purpose of obtaining professional diagnosis or treatment for the employee's medical condition
(3) The absence is for other medical reasons, such as pregnancy or obtaining a physical examination.
(4) The employee is providing care or assistance to a Family Member (as defined), with an illness, injury, or medical condition, including assistance in obtaining professional diagnosis or treatment of a medical condition.
(5) The absence is for the employee’s use of Safe Time (time away from work that is necessary due to domestic violence, sexual assault or stalking, for the purpose of medical attention, services from a victim services organization, psychological or other counseling, relocation for the above, or legal services including preparing for or participating in civil or criminal proceedings)
(6) The employee’s place of business is closed by order of a public official due to a Public Health Emergency, or the employee is providing care or assistance to a child, whose school or child care provider is closed by order of a public official due to a Public Health Emergency.
8. You may require reasonable advance notice of the intention to use sick leave (not to exceed seven days’ prior to the date such sick leave is to begin) where the need is foreseeable. Where the need is not foreseeable, you may require an Employee to provide notice of the need for sick leave as soon as practicable. For an absence of more than three consecutive work days, you may require reasonable documentation that the use of sick leave was authorized. You must accept as reasonable, documentation signed by a licensed Health Care provider indicating the need for the amount of sick leave taken, and you may not require that the documentation specify the nature of the injury, illness, or medical condition.
9. You may not require an employee to search for a replacement employee.
10. You must create contemporaneous written or electronic records documenting employee accrual and use of sick leave and retain these records for a period of at least three years. You also must post the Minimum Wage and Earned Sick Leave notice at any workplace or job site where any employee works. The notice must be posted in English and any other language as dictated by the federal Voting ights Act and spoken by at least 5% of the employees at the job site. You may provide this notice through an accessible electronic communication in lieu of a paper notice.
The ordinance establishes a civil penalty for most violations of up to $1,000. Violations of the notice requirement may be assessed at $100 per employee, up to a maximum of $2,000. Employers are prohibited from engaging in retaliation against an Employee for exercising (reasonably and in good faiany right provided by the new law ursuant to this Division. The protections of this Division apply to any Employee who reasonably and in good faith reports.
