California recently became the second state in the US to require sick leave for employees. If you work for at least thirty days in a calendar year, you are entitled to at least 24 hours, or three paid sick days per year. The only other state to offer similar protections, Connecticut, allows employees to accrue up to forty hours of sick leave. Flight attendants, in home care workers, and workers subject to a collective bargaining agreement are exempt from California’s sick leave law.
California is seven years behind San Francisco, which enacted a mandatory sick leave ordinance in 2007. San Francisco employers who employ at least 10 workers must provide a maximum of 72 hours of paid sick leave to their employees. Employers of less than 10 workers must provide up to 40 hours. Interestingly, San Francisco’s sick leave ordinance not only provides more sick leave, but there is no annual cap. In other words if you have 40 hours of sick leave “in the bank” and you use 8, you begin accruing it as soon as you return to work.
Unpaid Time Off as a Reasonable Accommodation
While three days might not seem like a lot, it sure is better than zero. In the dark ages before paid sick leave, i.e. California circa August 2014, only unpaid time off from work to recover from an illness, injury, or disability was legally protected. Under the Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), the California Family Rights Act (CFRA), and the Family Medical Leave Act (FMLA), while you are entitled to medical leave, none of these statutes require paid leave. Furthermore, a cold or a flu or some other minor sickness might not actually qualify under some or all of these statutes due to these laws’ definitions of “disability.”
Nonetheless, these laws are all still important and relied upon by millions of workers. The interplay of these laws is sometimes confusing. Below are some of the key differences of these laws.
- Applies to any employer who employs five or more employees (FEHA) or 15 (ADA).
- Protected time-off is open ended. Employees are entitled to time off as a reasonable accommodation to the extent that the time off does not cause an “undue hardship” on the employee.
- Any physical, mental, or medical condition that limits a major life activity, including working, is covered as a disability.
- No leave for family members or dependents; protections only apply to the employee.
- No minimum amount of service time required before employee is eligible. Applies to all employees and even job applicants.
- Applies to employers with 50 employees or more within 75 miles of the affected employee.
- Limited to 12 weeks of leave.
- Allows leave for any “serious health condition.” Pregnancy specifically included.
- Leave is available for both employee’s own condition as well as time off to care for sick family members.
- Employees must be employed for a minimum amount of time before protections kick in.
These statutes can operate concurrently. For example, an employee can be on “FMLA” approved leave, but require more than the statutorily guaranteed 12 weeks of leave. Just because the FMLA leave is over, this does not mean the employer can terminate the employee for failing to return to work. The employer and the employee still need to determine how much additional leave the worker can have, and whether any additional leave constitutes an undue hardship on the employer. Employers frequently make the costly mistake of terminating an employee that does not return at the end of their 12 week leave due to inflexible FMLA leave policies. This can be a costly mistake. If this happened to you, or if you have any sick leave or time off issues at work (or are anticipating them) give me a call or send me an email.