Q: I WORK for a temp agency as an hourly employee and I recently got sick. I asked the employer if I was entitled to paid sick leave. I was told that I was not entitled to paid sick leave because I was a temporary worker. Is this right?
A: The law used to be that employers were not legally required to provide paid sick leave to employees. However, California enacted the Healthy Workplace Healthy Family Act of 2014, which created changes to the state’s sick leave laws. The new law provides the following:
An employee working in California, on or after July 1, 2015, for 30 or more calendar days within a year is entitled to paid sick leave. This applies to temporary, part-time, and full-time employees. Such employees may begin using accrued sick leave on the 90th calendar day of employment.
Employees may use paid sick leave for themselves or a family member for the diagnosis, care or treatment of an existing health condition or for preventive care. Employees who are victims of domestic violence, sexual assault, or stalking may also avail of paid sick leave for specified purposes.
How do employees earn sick leave? Employees become entitled to one hour of paid sick leave for every 30 hours worked. Thus, an employee who works 40 hours per week accrues 1.33 hours per week of paid sick leave. Accrued paid sick leave must carry over to the following year and may be capped at 48 hours (or 6 days). An employee who is exempt from overtime requirements, and does not have a normal workweek, is deemed to work 40 hours per workweek. The employer may lend paid sick days to an employee before the employee has earned them.
Alternatively, instead of having employees earn the sick leave, employers can provide 24 hours or 3 days of paid sick leave at the beginning of each calendar year, anniversary date or twelve months basis. If this method is used, then the employer will not need to track accrual but will still need to track and display usage of sick leave on the employee’s pay stub. Also, if this method is used, the employer is not required to provide for carry-over of unused sick leave.
How much should employers pay for sick leave? Employers must pay sick leave at the employee’s current hourly rate of pay. For employees who are paid by commission or piece rate, their hourly rate is derived by dividing their total compensation for the previous 90 calendar days by the number of hours worked. Payment for used sick leave should be no later than the payday for the next regular payroll period after the sick leave was taken.
If the need for paid sick leave is foreseeable, the employee should provide reasonable advance notice to the employer. If the need for paid sick leave is unforeseeable, the employee should provide notice of the need for the leave as soon as possible.
If the employee quits, retires or is fired, the employer is not required to pay out accrued, unused paid sick days at the time of termination, resignation or retirement. However, if the employer has a separate paid time off (PTO) plan, a final payout of PTO is due at termination. If the employee is rehired within one year, previously accrued and unused paid sick days should be reinstated.
Employees may file a paid sick leave claim against the employer if the employer:
– Illegally withheld payment for use of accrued sick days
– Failed to provide a statement of accrual of sick leave
– Failed to accurately track accrued sick leave
– Required an employee to use a full day or half day absence for any use of sick leave. (An employer may require a minimum of 2 hours for each use of paid sick leave.)
– Denied payment for sick leave because employee failed to provide prior notice for an unforeseen illness
– Required the worker requesting sick leave to find a replacement to cover his/her scheduled shift or assignment
– Denied sick leave due to a failure to provide details
Lastly, the law prohibits employers from retaliating against employees for the employees’ exercise of their sick leave rights.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.