(1) California Employers Must Offer Increased Sick Leave Entitlements. Effective January 1, 2024, the amount of paid sick leave employers must provide to eligible California employees will increase from three days/24 hours to up to five days/40 hours per year. For employers in the city of San Diego, this will be familiar.
Much of the State’s current sick leave law remains the same. For example, employers will still have the option to frontload benefits at the beginning of each year or adopt an accrual system, and to establish certain caps on the amount of leave that employees may use each year or have accrued at any one time. There are some additional changes:
- Increased Alternative Accrual Rates: While employees continue to accrue sick leave at a rate of at least one hour for every 30 hours worked, the minimum accruals are now phased. For employers that provide paid sick leave either through a PTO policy or alternate accrual method, in addition to ensuring their employees accrue 24 hours of paid sick leave by the 120th calendar day of employment, there is an added requirement that the employees must also accrue at least 40 hours of paid sick leave by their 200th calendar day of each year of employment.
- Increased Use Cap: Employers may limit an employee’s annual use of paid sick leave to 40 hours (increased from 24 hours).
- Increased Accrual Cap: Employers may cap an employee’s paid sick leave accrual at 80 hours or 10 days (increased from 48 hours/6 days).
- Impacts on Collective Bargaining Agreements: Employees covered by a qualified CBA may no longer be exempt from the following provisions in the sick leave law: (1) reasons for use of paid sick leave; (2) no retaliation for use of paid sick leave; and (3) not requiring the employee to find a replacement worker as a condition for using paid sick leave.
- Impacts on Local California Paid Sick Leave Laws: Some California cities have their own local paid sick leave laws providing even greater protections to employees (San Diego, Santa Monica, Los Angeles, Emeryville, Berkeley, Oakland and San Francisco). The State’s amended sick leave law partially preempts local local paid sick leave ordinances on the following topics: (1) compensation for accrued, unused paid sick days upon separation; (2) reinstatement of previously accrued and unused paid sick leave upon rehire; (3) advancing paid sick leave; (4) written notice of unused paid sick leave available; (5) method of calculation of paid sick leave; (6) employee’s advanced notice of foreseeable sick leave; and (7) payment of sick leave.
This means that where local paid sick leave laws have rules that conflict with those in the California state sick leave law, California’s law on the above topics will control. That said, the California state sick leave law likely will not control where the local ordinances are simply more generous as to those provisions.
Why does this matter? Your handbook policies, and your practices, likely will need to be amended. Reminder: Paid sick leave is paid at the employee’s regular rate of pay, which may be different from the employee’s base hourly rate of pay.
(2) New Leave for Reproductive Loss. Employers covered by the California Family Rights Act (“CFRA”) (those with 5 or more employees) now are required to provide five (5) days of unpaid “Reproductive Loss Leave” in the event of a “reproductive loss event,” which is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.”
Eligible employees (those employed at least 30 days) may take up to 20 days’ unpaid leave within a 12-month period. Employees may combine leave periods up to this amount. Leave must be taken within three (3) months of the date of reproductive loss, does not need to be consecutive, and the employer cannot mandate proof of death. Eligible employees may choose to apply any accrued and available sick leave, vacation or PTO.
What this means for you? Covered employers will need to add this policy to their handbooks and train their supervisors on these entitlements.
(3) The DOL has Issued Guidance on FMLA:
- FMLA Employee Eligibility and Remote Workers: The determination under FMLA as to whether an employee has been employed for at least 12 months and has at least 1,250 hours of service is made as of the date FMLA leave is to start. This includes employees who work remotely. The math on the 1,250 hours is based on compensable time under the FLSA.
- Employee’s Worksite and Remote Workers: FMLA also requires that an employee work at a worksite that has at least 50 employees within 75 miles in order to be eligible for leave. The updated DOL guidance affirms that an employee’s personal residence is not a worksite, and when an employee works from home or otherwise works remotely, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Please note that this requirement regarding number of employees within a geographic radius does not exist under the California Family Rights Act ("CFRA").
- FMLA and Indefinite Reduced Work Schedules: An FMLA-eligible employee with a serious health condition that requires an indefinite reduced work schedule may use any available FMLA for purposes of their intermittent leave when it is medically necessary due to the employee’s serious health condition. The guidance did not comment on the employer’s ADA obligations, but the DOL noted that an employer may have obligations under both FMLA and ADA and emphasized that “the requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously.”
- Calculating FMLA Leave Used During Holidays: The DOL issued an opinion letter addressing how to calculate the amount of FMLA leave used when an employee takes leave during a week which includes a holiday: where the employee is taking only a partial week of FMLA leave, the holiday is not counted as FMLA leave unless the employee was actually scheduled to work on that holiday. In such an instance, to calculate the fraction of the workweek of FMLA leave used, the amount of leave taken (not including the holiday) is divided by the total workweek (including the holiday). For example, if an employee takes leave for one workday in a workweek with a holiday, and they were not scheduled to work on the holiday, the employee has taken one-fifth (1/5) of a week of leave. However, if an employee takes a full workweek of FMLA leave in a week containing a holiday, the entire week (including the holiday hours) will count against the employee’s FMLA entitlement. Thus, an employee taking leave for a full workweek that includes a holiday has taken one week of leave.
