California Paid Sick Leave Amendments Effective 1/1; DIR Publishes Updated FAQs and Model Poster

Jai HookerPaid Sick Leave Updates

California Paid Sick Leave Amendments Effective Jan. 1: Updated FAQs and Model Poster

Catherine S. Feldman and Joshua D. Seidman

Seyfarth Shaw

What You Need to Know

  • Effective Jan. 1, 2024, California’s amended paid sick leave law goes into effect. As detailed in a prior update, the amendments increase the annual amount of California paid sick leave from three days or 24 hours to the greater of five days or 40 hours for eligible employees. The amendments also raise the accrual and year-end carryover cap from 48 hours or six days to the greater of 80 hours or 10 days.
  • Earlier this month, the California Department of Industrial Relations (DIR) published updated Frequently Asked Questions (FAQs) on the amended law, including how employers can transition existing paid sick leave protocols to satisfy the amended requirements.
  • As outlined in the updated FAQs, transition requirements depend on several factors, such as whether the employer provides paid sick leave through an accrual or a frontload method.
  • In addition to issuing updated FAQs, the Labor Commissioner updated the California paid sick leave model poster required to be posted in the workplace and the wage theft notice for distribution to employees.

On Dec. 12, 2023, the DIR published updated FAQs regarding California paid sick leave . These FAQs provide the first guidance on California’s amended paid sick leave law, which goes into effect on Jan. 1, 2024. Generally, the FAQs set forth requirements regarding employees’ annual entitlement to paid sick leave, eligibility criteria, accrual versus frontloading, use of paid sick leave, payment, and tracking of earned and taken leave, and information to be provided to employees. Key FAQs provide the following insights and reminders:

Non-calendar benefit year and compliance with amendments on Jan. 1, 2024: The FAQs highlight how employers that provide paid sick leave benefits on a benefit year other than the calendar year (i.e., where the year does not start on Jan. 1 and end on Dec. 31) can comply with the impending paid sick leave law amendments as of Jan. 1, 2024. According to the FAQs, if an employer uses an accrual method, has an annual start date other than Jan. 1, and caps annual usage at three days or 24 hours, the annual usage cap must increase to the greater of 40 hours or five days on Jan. 1. The FAQs offer the following example:

If an employer uses the 12-month period of May 1–April 30 for accrual of paid sick leave with a usage cap of 24 hours or three days, the employer must allow the employee to use an additional 16 hours or two days before April 30 if the employee has accrued that additional leave. Similarly, the FAQs provide that if an employer frontloads paid sick leave on an employee’s anniversary date, the employer can either frontload two additional days on Jan. 1 or move the measurement of the yearly period to Jan. 1, 2024 and frontload the greater of 40 hours or five days at the start of 2024. Although not explicitly stated, the same guidance generally would apply for employers that frontload paid sick leave on another date that is not Jan. 1.

Interplay with local paid sick leave ordinances: Given the numerous local California paid sick leave ordinances, the FAQs highlight that employers must comply with any applicable local ordinances and California’s Paid Sick Leave law. Where there are differences in the relevant laws, employers must adhere to the law that is more generous to employees. The only exceptions to this general requirement is that local ordinances cannot contradict California’s requirements regarding:

  1. The lending of paid sick leave;
  2. Paystub statements;
  3. Calculation of paid sick leave;
  4. Providing notice if the leave is foreseeable;
  5. Timing of payment of paid sick leave; and
  6. Whether payment of sick leave is required upon termination.

California’s law preempts the local law only as to these specific topics.

Employees Exempt from the paid sick leave law: Employees exempt from California’s paid sick leave requirements include individuals employed in specific industries including: an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least as generous as the California paid sick leave requirements; retired annuitants working for government entities; railroad employees; and construction employees covered by a collective bargaining agreement (CBA) with specific provisions.

As previously noted, even employees outside of the construction industry can be partially exempt from the state’s paid sick leave requirements if they are covered by a CBA with specific provisions. Notably, this is a partial preemption. Such employees are still entitled to some paid sick leave under their CBA. The updated FAQs note that as of Jan. 1, 2024, these employees also must be allowed to take sick leave for all the reasons set forth in the California paid sick leave law, cannot be required to find a replacement worker as a condition for taking sick leave, and cannot be retaliated against for taking sick leave, among other things.

Medical documentation cannot be a prerequisite for taking paid sick leave: As with the prior iteration of California’s paid sick leave law, the amended law is silent on employers’ ability to require documentation for use of paid sick leave. The FAQs weigh in on this silence, and confirm that an employer generally cannot require health care provider certification before allowing a worker to take paid sick leave. In other words, an employee can take paid sick leave immediately upon oral or written request, and may not be denied the sick leave due to a lack of medical documentation. Importantly, the FAQs note that it may be reasonable for an employer to ask for documentation before paying sick leave if it has reason to believe the employee’s sick leave request is for an invalid purpose.

New model poster: In addition to the FAQs, the Labor Commissioner has updated the California paid sick leave poster and wage theft notice (i.e., Labor Code Section 2810.5 notice to employees) to comply with the amended law. The FAQs include reminders that employers must display a poster in a conspicuous area frequented by employees where it may be easily read during the workday, and provide most employees with an individualized wage theft notice that includes paid sick leave information.

Next Steps

As the California paid sick leave law amendments’ Jan. 1, 2024, effective date is mere days away, here are some next steps for employers to consider:

  • Review existing sick leave or paid time off policies and practices, including those in a California locality with a separate local paid sick leave mandate, and either implement new policies and practices or revise existing policies and practices to ensure compliance with the amendments. Do the same for any related attendance, conduct, anti-retaliation, and discipline policies and practices.
  • Train supervisory and managerial employees, as well as human resources teams on the new requirements.
  • Monitor the California Labor Commissioner’s website for the release of additional administrative guidance on employers’ paid sick leave compliance obligations in light of the amendments.
  • Update onboarding packets for nonexempt workers with an updated Wage Theft Prevention Act Notice reflecting the changes to California law, if needed.

***This article originally appeared on the Seyfarth Shaw “If Pain, Yes Gain” legal update series and was reposted on the DMEC website with their permission.***