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Increased Sick Leave for California Employees: Dead or Alive?

By JoLynn (Pollard) Scharrer

(as published by the Daily Journal‘s Top Labor and Employment Lawyers July 18, 2018 issue)

California Assemblymember Lorena Gonzalez Fletcher recently introduced Assembly Bill 2841 in February. The bill sought to amend Section 246 of the Labor Code to increase the accrual of paid sick time for employees in California. The bill was ultimately suspended on May 25, but is one to watch and sets the stage for a continued fight for employers in the Golden State to provide more paid leave.

Existing law provides that employees who work 30 or more days within one year from the commencement of their employment are entitled to accrue sick days at a rate of no less than one hour for every 30 hours worked. The accrued time shall be available for use no later than the 90th day of employment, so that an employee accrues no less than 24 hours by the 120th calendar day of employment or each calendar year, or in each 12-month period. As an alternative to accrual, an employer may provide 24 hours of paid sick leave to employees at the completion of their 120th day of employment (front-load). Also under existing law, an employer is not obligated to provide an accrual in excess of 48 hours, so long as the employee’s right to accrue and use paid sick time is not otherwise limited. An employer is currently required to carry-over unused sick time to the following year of employment not to exceed a total of 24 hours.

AB 2841 sought to increase the accrual rate for paid sick time in California. Employers in California would be required to provide paid sick time by the same accrual method, one hour for every 30 hours worked, or through another regular accrual basis, of no less than 40 hours by the 200th day of employment or each calendar year, or in each 12-month period. As with the existing statute, employers may simply front-load 40 hours of paid sick leave to employees at the completion of their 200th day of employment as an alternative to accrual. The amended Labor Code section would also have required employers to carry-over paid sick time, but the accrual need not exceed a total of 40 hours. If the full amount of paid sick leave is provided at the commencement of each year of employment, no carryover is required.

The bill amends the accrual time, or maximum amount of leave for in-home supportive service workers as well. Currently, the “full amount of leave” required is tied, in part, to increases in minimum wage. The statute requires 24 hours of paid sick leave in each year of employment, calendar year, or 12 month period beginning when the minimum wage has reached $15 per hour. The amendment proposes to increase the accrual to 40 hours in each year of employment beginning Jan. 1, 2026.

It may have come as a surprise to some that this bill was introduced only three years after passage of the Healthy Workplaces, Healthy Families Act of 2014 (also authored by Gonzalez Fletcher) and a wave of local ordinances designed to bolster sick leave requirements in several cities throughout California. These local ordinances include distinct sick leave requirements in major business centers such as Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco and Santa Monica. There is little uniformity in the ordinances, and employers doing business in multiple cities with paid sick leave requirements can be left with an administrative headache in ensuring compliance. In California, generally, an employer is in compliance with state and local law if it conforms to the statute, ordinance or regulation that confers the greatest benefit to the employee where more than one statute, ordinance or regulation applies and conflicts. This bill resembles San Diego’s sick leave ordinance, where Gonzalez Fletcher’s district is located, although the San Diego ordinance includes the highest accrual cap, of 80 hours, in the state.

This may be one of the reasons that AB 2841 failed to advance past the Assembly Appropriations Committee in May. This bill, along with many others, was placed on the committee’s suspense file because it would have a fiscal impact to the state of more than $150,000. The bill will not advance this year, despite the somewhat surprising fact that its author is also the chair of the very committee that placed it in suspension.

Several groups, such as the California Women’s Law Center and California Work & Family Coalition supported the bill on the basis that the amendment reduced the impact that unexpected illnesses have on California’s working families and that recent aggressive flu epidemics require additional time for employees to recuperate. Following its suspension, groups like the California Chamber of Commerce, the National Federal of Independent Business, advocates for small and independent business owners, and the Agricultural Council of California now oppose the measure due to its fiscal impact on employers.

Gonzalez Fletcher does not see the bill’s suspension as a defeat, as she likely expects the bill to be passed next year. Following the hearing, Gonzalez Fletcher tweeted: “I’m glad we raised the issue this year and look forward to fighting for more paid leave next year.” In the meantime, both employers and employee advocates will be circling the wagons on this issue.

JoLynn (Pollard) Scharrer is a shareholder at Hunt Ortmann and leads the firm’s Employment Law Group and Insurance Group. She can be reached at scharrer@huntortmann.com.

 

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