Find out what sick pay your California employer is required to give you.
* For information on additional sick pay laws regarding COVID-19, please check out our COVID-19 Guide to What California Employees Need to Know Now.
When workers get sick, they’re often forced to make a difficult choice.
They can either risk their own health (and the health of others) by going to work–or they can risk their job by staying home.
A majority of Americans agree that workers shouldn’t have to make this choice. [efn_note]https://www.pewresearch.org/fact-tank/2017/03/23/key-takeaways-on-americans-views-of-and-experiences-with-family-and-medical-leave/.[/efn_note].But while there’s widespread support for paid sick leave, there’s currently no U.S. federal law requiring employers to provide it.
Fortunately, some local and state jurisdictions have taken matters into their own hands. California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, or HWHFA, has been on the books since 2015.
Who’s eligible for paid sick leave in California?
Under the HWHFA, you’re entitled to earn (or “accrue”) sick leave if you work for the same employer for at least 30 calendar days within a year in California.
Most full-time, part-time, per diem, and temporary employees are covered by this law. Exceptions include:
- employees covered by certain collective bargaining agreements,
- certain employees of air carriers, and
- retired annuitants working for governmental entities. [efn_note]California Labor Code § 245.5(a).[/efn_note].
When can you use paid sick leave?
You can use your accrued sick leave to get paid while taking time off from work for preventative care or the diagnosis, care, or treatment of an existing health condition for you or your family member.
You can also take sick leave for certain purposes if you’re a victim of domestic violence, sexual assault, or stalking. [efn_note]California Labor Code § 246.5(a).[/efn_note].
“Preventative care” includes, among other things, annual physicals and flu shots. Your “family members” include your:
- registered domestic partner,
- grandchild, and
- sibling. [efn_note]California Labor Code § 245.5(c).[/efn_note].
When you take sick leave, you can decide how much of your available paid sick leave you need to use. Your employer generally can’t tell you how much to take. Your employer can only require you to take at least two hours of leave at a time (or less).
If your sick leave is planned (such as for a doctor’s appointment), you must notify your employer in advance. But if you need to take sick leave for an unforeseeable reason (such as for an emergency or sudden illness), you only have to give notice as soon as practical.
How many sick days must my employer give me?
The amount of sick leave available to you depends on your employer’s paid sick leave plan.
If you have questions about your employer’s sick leave policy, you should talk to your employer’s human resources department.
Under the HWHFA, most employees are entitled to at least 24 hours or three days (whichever is more) of paid sick leave per year. [efn_note]California Labor Code § 246(b).[/efn_note].
Some local jurisdictions, such as Los Angeles and San Francisco, have sick leave laws that require even greater benefits. [efn_note] See, e.g., City of Los Angeles Wage Standards Ordinance and City & County of San Francisco Paid Sick Leave Ordinance.[/efn_note].
If your employer adopted a policy under the HWHFA, it should have either an “accrual” policy or an “upfront” policy.
Under an accrual policy, employees earn paid sick leave over time — generally, at least one hour of paid sick leave for each 30 hours of work.
That means it’s possible to earn more than 24 hours or three days of leave per year. But employers may still limit the use of paid sick leave to 24 hours or three days per year.
Accrued and unused paid sick leave carries over to the next year. But your employer can also limit your total accrued paid sick leave to no more than 48 hours or six days. [efn_note]California Labor Code 246(j).[/efn_note].
The law permits other accrual schedules, so long as employees get at least 24 hours or three days of accrued sick leave or paid time off by the 120th calendar day of employment. [efn_note]California Labor Code 246(a).[/efn_note].
In addition, if you leave your employer, the law requires your employer to restore any accrued and unused sick leave to you if you return within 12 months — unless that leave was previously cashed out to you.
Upfront policies (no accrual)
Under an upfront policy, employers must still provide at least 24 hours or three days of paid sick leave per year. But the full amount of sick leave for the year is given to employees at the beginning of a year-long period. [efn_note]California Labor Code 246(d).[/efn_note]. New hires must get the full amount of leave by the 120th day of employment.
The year-long period is calculated by the employer. It may be each year of employment, the calendar year, or a 12-month period.
If your employer has an upfront policy, it’s not required to allow you to carry over unused sick leave to the next year.
You may be eligible for additional sick leave due to COVID-19
For information on additional sick pay laws regarding COVID-19, please check out our COVID-19 Guide to What California Employees Need to Know Now.
Employer-specific sick leave plans
The HWHFA establishes minimum sick leave requirements. But your employer may provide sick leave through its own sick leave or paid time off plan if the plan meets either:
- the accrual, carryover, and use requirements of the HWHFA, or
- the requirements of the HWHFA’s “grandfather clause.” [efn_note]Labor Code 246(f); State of California Department of Labor: Frequently Asked Questions. New Questions Concerning the Paid Sick Leave Law.[/efn_note].
Under HWHFA’s “grandfather” clause, sick leave policies that were in place before January 1, 2015 (when the law came into effect) can use a different method for accruing sick leave if:
- an employee has no less than eight hours or one day of accrued paid sick leave or paid time off within three months of employment of per year, and
- the employee is eligible to earn at least 24 hours or three days of paid sick leave or paid time off within nine months of employment. [efn_note]Labor Code 246(f).[/efn_note].
If the accrual method of a grandfathered policy is modified in any way, then the employer must either:
- use an accrual method provided under the law, or
- provide the full amount of leave at the beginning of each year of employment.
What happens if you use all your paid sick leave but still need time off?
Once you’ve used all your sick leave, your employer generally isn’t required to keep paying you if you need more time off to care for yourself or a family member. The exception is if you have vacation or paid time off that allows for leave under these circumstances.
You may also be able to take leave under California or federal leave laws, such as the California Family Rights Act or the Family and Medical Leave Act. Leave under these laws is generally unpaid. But they provide eligible employees with job protection if they take time off for certain specified reasons, including because of illness or to care for a family member.
This means that if you’re covered by these laws, you can take leave and return to the same or a substantially similar job. Your employer can’t fire you, threaten you, or retaliate against you for taking leave.
What should you do if your employer violates your right to paid sick leave?
California’s Labor Commissioner’s Office enforces the laws that protect workers from labor rights violations, including the HWHFA.
Under the HWHFA, your employer can’t deny you the right to use your paid sick leave. It also can’t retaliate against you for:
- taking sick leave,
- cooperating in a labor code violation investigation, or
- complaining about labor violations. [efn_note]California Labor Code 246.5(c).[/efn_note].
Retaliation may include, among other acts:
- firing you or threatening to fire you,
- reducing pay,
- demotion, or
- threatening to report immigration violations.
It’s also illegal for your employer to require you to find a replacement before allowing you to take paid sick leave. [efn_note]California Labor Code 246.5(b).[/efn_note].
If your employer violates your right to paid sick leave, you can file a complaint with the California Labor Commissioner. You may also be able to file a lawsuit. Possible relief includes:
- payment of withheld sick days,
- administrative penalties,
- liquidated damages, and/or
- attorney’s fees and costs. [efn_note]California Labor Code 248.5.[/efn_note].
If you believe your rights have been violated, you should talk to a California employment attorney about your situation right away.
If you have been denied sick pay, or have been terminated, harassed, demoted or discriminated against because of a pregnancy, medical issue, injury, or disability, our experienced employee rights attorneys can walk you through your options.
Are you a California employee with questions for an employment attorney?
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DISCLAIMER: This article does not provide legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.