Effective January 1, 2000, a new provision has been added to the California Labor Code. New section 233 states that employers who provide paid sick leave from general company assets to employees for personal illness or injury or a medical condition or for diagnosis or treatment of an employee's medical condition or for other medical reasons (such as pregnancy or obtaining a physical examination) will be required to allow employees to use part of that leave for the illness of a child, parent or spouse of the employee.
The amount of sick leave to be made available for the illness of a child, parent or spouse is specified as "an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement" per year. The total amount of available leave is not extended by this provision since the use of leave for the illness of a parent, child or spouse is limited to the employee's "accrued and available" leave.
The bill, by its language, addresses only the "illness" of a child, parent or spouse; not injury or disability.
All "conditions and restrictions" placed on the use of sick leave by an employee may be applied by the employer to leave for the illness of a child, parent or spouse. Thus, medical certification, advance notice of scheduled appointments and similar requirements may be applied.
The definition of "sick leave" in the statute is broad enough to include paid time off, personal days, vacation, etc., if such time off could be used by an employee for personal illness, injury, medical condition, diagnosis or treatment, or other medical reason. If an employee may take paid time off for these reasons, the employer must permit an employee to take up to one-half his/her yearly accrual for the illness of a child, parent or spouse every year. Thus:
- an employer that limits paid leave to six days of paid sick leave per year would need to allow an employee to use three days for the illness of a child, spouse or parent.
- an employer that provides 16 days per year of paid time off, which employ- ees may use as they choose, must allow an employee to use eight days for the illness of a child, parent or spouse provided the employee meets any restrictions or conditions which apply to the paid time off.
- an employer that provides six days of paid sick leave, two personal days off and ten vacation days per year must allow an employee to use nine days for the illness of a child, parent or spouse.
The statute does not directly address the use of any sick leave an employee may have accrued in previous years which the employer's policy allows to carry over from year to year. However, the minimum amount available for the illness of a child, parent or spouse in a calendar year is set as the amount the employee could accrue in six months at his/her current rate of entitlement. It thus appears that no more than one-half the current annual entitlement may be used in any calendar year for the illness of a child, parent or spouse.
According to the statute, there is to be no extension of family leave time on account of the new requirement. However, this is not necessarily true. Under current California regulations, an employer may not require an employee to use paid leave concurrently with family leave for the serious medical condition of a family member. An employee who elects not to take concurrent paid sick leave when absent from work because of the serious medical condition of a family member may thus preserve such leave for use after the expiration of the family leave.
Denial of the paid leave required by the statute and/or discrimination against an employee for exercising or attempting to exercise his/her statutory rights is prohibited. If the prohibition is violated, the employee may seek relief before the Labor Commissioner or in court. Remedies include reinstatement and actual damages or one day's pay, whichever is greater, and "appropriate equitable relief," i.e., restraining orders or injunctions. Attorneys' fees are available if an employee prevails in a court action.
Employer Action Needed
Prior to January 1, 2000, employers should review sick leave and any other nonspecific paid time off policies and collective bargaining agreement provisions.
- If an employer currently pays sick leave from general assets, consideration could be given to the establishment of a separate trust fund arrangement (VEBA) for sick leave benefits which would be preempted by ERISA and not subject to the statute. Such arrangements are cumbersome and expensive but may be appropriate for some employers. If payment of sick leave benefits will be made from the employer's general assets, the following points merit attention.
- Statements limiting the use of sick leave to personal use by an employee should be eliminated from policies or agreements. There is no requirement to inform employees of their rights under the new statute, but including a brief statement in a sick leave policy might be helpful in defending against discrimination claims.
- Sick leave entitlements and accrual rates should be reviewed and adjusted if necessary. This should be done prior to the effective date of the statute, to avoid discrimination claims. There is no statutory or judicial requirement for an employer to provide any paid leaves.
- Policies should be revised, if necessary, to clearly state when paid sick leave begins to accrue, and how much, if any, carries over from year to year. A statement that no payment will be made at termination for unused sick leave is desirable. However, if the leave is not designated as sick leave and may be used for any purpose by the employee, this practice is unlawful and the statement should not be made.
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