Cal-Peculiarities: How California Employment Law is Different 2022 Edition

38 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 2.14.1 California Paid Sick Leave Law In 2014 California became the second state (after Connecticut) to impose a state-wide PSL law. The Healthy Workplaces Healthy Families Act (the California Paid Sick Leave Law) created a poster requirement, an amended Wage Theft Prevention Act Notice requirement, and a PSL entitlement provision (including specific PSL accrual provisions). The California PSL law covers virtually all employees (including part-time, temporary, and seasonal employees) who work in California for the same employer for 30 or more days within a year . 99 Rate of accrual. Covered employees accrue one hour of PSL for every 30 hours worke d. 100 An employer may select a different accrual method so long as the accrual is on a regular basis that gives employees no less than 24 hours of PSL or paid time off by the 120th calendar day of employment, or in each 12-month period . 101 The accrual rate for exempt employees is based on a presumed 40-hour workweek, except that an exempt employee whose normal workweek is less than 40 hours accrues PSL based on that employee’s normal workwee k. 102 Employees must be permitted to carry over all their accrued, unused PSL to the following year, but employers may cap the accrual of PSL at 48 hours or six days . 103 Instead of using the accrual method, employers can choose to give covered employees at least three days or 24 hours of PSL at the beginning of each year; under this option, no one-hour-per-30-hour accrual or carry-over is required . 104 The law does not require an employer to provide additional paid sick days if (1) the employer has an existing paid leave or PTO policy, (2) the employer makes the paid leave available under the same conditions as stated in the law, and (3) the existing policy either (a) satisfies the accrual, carry-over, and use requirements of the law or (b) provided PSL or paid time off to a class of employees before 2015, pursuant to a PSL policy or a PTO policy that used an accrual method different than providing one hour per 30 hours worked, so long as the accrual was on a regular basis so that an employee has no less than one day or eight hours of PSL or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days or 24 hours of PSL or paid time off within nine months of employment . 105 Employers can limit use of PSL to 24 hours or three days during each year of employment (whichever is more generous) . 106 E mployers may set a reasonable minimum increment, not to exceed two hours, for an employee’s use of PSL . 107 Permitted uses of PSL. Employees become eligible to use PSL on their 90th day of employment, after which they are eligible to use PSL as it accrues . 108 Employees may use PSL not only for their own illness, diagnosis, treatment, or preventive care, but also to care for an ill child (regardless of age or dependency status), parent (which is broadly defined and includes, among others, parents-in-law), spouse or registered domestic partner, grandparent, grandchild, and sibling . 109 Additionally, employees who are victims of domestic violence, sexual assault, or stalking, or other abuses or crimes, as defined by California Labor Code section 230.1 may use PSL to seek aid, treatment, or related assistanc e. 110 Calculating rates for sick pay. While an employer may calculate sick pay for exempt employees “in the same manner as the employer calculates wages for other forms of paid leave time, ” 111 e mployers must choose between two peculiar methods of calculating PSL for nonexempt employees. The first method entails “dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay