A summer cold. A winter flu. A sick child. Whether it’s you or a family member, getting sick often means that you need to take time off from work. But what about those hours? How will you handle the lost income? Can that absence be held against you? And do you really need to get a doctor’s note?
Since 2015, California law has required that employers provide paid sick leave to all employees, including full-time, part-time and temporary employees. Like many laws in the workplace, however, some employers violate their employees’ rights. Here’s what you need to know.
1. California employees are entitled to paid sick leave.
California’s paid sick leave law—officially named the Healthy Workplaces, Healthy Families Act—requires employers to offer employees at least 3 days (or 24 hours) of paid sick leave per year.
What can you use paid sick leave for? Assuming that you have accrued paid sick leave available (more on that below), the law requires that an employer provide paid sick leave for the following purposes:
- The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee; and
- The diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee’s family member.
2. You’re eligible to use accrued paid sick leave after you’ve been employed for 90 calendar days.
California employees are eligible to use paid sick leave if they work for the same employer for at least 90 days. It doesn’t matter if you’re working as a temporary, per diem, part-time or full-time worker. With a few narrow exceptions, the paid sick leave applies equally to all employees.
If you’re newly employed, you will need to wait for three months before you can use any paid sick leave. Employees are entitled to use their paid sick leave beginning on their 90th day of employment. That means the 90th calendar day after your start date, and not after 90 work days.
3. How many days of paid sick leave do you get?
The paid sick leave law allows employers to provide paid sick leave in one of two ways. First, the employer can allow you to accrue one hour of paid leave for every 30 hours worked up to a total of 48 hours or six days of paid sick leave. If you’re working a 40-hour, full-time schedule, you will accrue 5.33 hours of paid sick leave every four weeks.
Second, the employer can provide you with 24 hours of paid sick leave that is available to use no later than your 120th day of employment. Many businesses appear to select the 24-hour-only option because it allows them to provide less paid sick leave.
4. You may take paid sick leave in two-hour increments.
Several employees have shared with us that their employers require them to take paid sick leave in 4-hour or 8-hour increments. No one needs to take a full day off from work, however to attend a one-hour doctor’s appointment.
The paid sick leave law recognizes that simple fact: “An employee may determine how much paid sick leave he or she needs to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.” Lab. Code § 246(k). If your employer requires you to take paid sick leave in any amount greater than two hours, your employer is violating your rights.
5. Your employer cannot require you to find another employee to replace you while you’re out sick.
We’ve also heard from employees who have been asked to find a co-worker to cover their shift before they could use paid sick leave. That’s also a violation of the paid sick leave law, which is clear on this issue: “An employer shall not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.” Labor Code § 246.5(b).
And that makes sense. The last thing you want to do when you wake up with the flu or a bad cold is to spend time calling co-workers. It’s not required. If you’ve been asked to find a replacement, or been disciplined for failing to find one, let us know.
6. How do you know how much paid sick leave you have?
Look at your paystub. Employers are required to include the amount of paid sick leave available (or the paid-time-off-leave an employer provides instead of sick leave) for use on either your paystub or in a separate writing provided to you with your paycheck. If your employer doesn’t include the amount of your accrued and used sick leave on your paystub, let us know. Your rights are being violated.
7. You should provide advance notice of the need to take paid sick leave if you can—and if you can’t, you should provide notice as soon as you’re able.
We hear from employees who have been terminated because they did not provide advance notice of the need to use paid sick leave. If that’s happened to you and you had accrued paid sick leave, you may have a claim for wrongful termination.
The paid sick leave law provides that if you can anticipate the need to use paid sick leave—e.g., when you need to use the paid sick leave for a scheduled doctor’s appointment—then you should provide reasonable advance notice.
But we cannot always anticipate when we will be sick! If the need to use paid sick leave is not foreseeable—e.g., when you or your child wakes up with the flu or some other illness—the paid sick leave law allows you to provide notice of the need to take paid sick leave to your boss as soon as you are able. That means that you can provide notice while you’re out sick.
8. Can my employer require me to bring a doctor’s note to use paid sick leave?
Doctor’s notes are not necessary to use accrued paid sick leave. The paid sick leave law provides that “an employer shall provide paid sick days . . . upon the oral or written request of the employee.” The paid sick leave law does not allow an employer to condition the right to use paid sick days on a requirement that the employee bring a doctor’s note.
We all know there are illnesses that do not require a doctor’s visit. And a doctor’s visit for some employees is a financial burden they should not need to bear simply to use their accrued paid sick days.
If you were denied paid sick leave, or disciplined in any way, for failing to provide your employer with a doctor’s note, contact the Los Angeles wrongful termination attorneys at Custis Law, P.C. We will be happy to help. However, please remember that, if you don’t have accrued paid sick leave available, your employer may require you to provide a doctor’s note.
9 Can my employer discipline or terminate me for using paid sick leave?
The short answer to this question is “No.” An employer may not discipline you for taking, or asking to take, accrued paid sick leave. The paid sick leave law says the following:
- An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.
Labor Code § 246.5(c). If your employer has denied you the right to use accrued paid sick leave, written you up because you did not provide advance notice of your need to take paid sick leave, or terminated you because you asked to take, or did take, accrued paid sick leave, please let us know. You may have a claim for wrongful termination.
10. What if I’m sick and don’t have any accrued paid sick leave?
If you do not have any accrued paid sick leave and need to take time off due to your or a family member’s illness, your employer could potentially discipline you for having an unexcused absence. Many employers understand that people get sick, however, and will allow you to miss additional days. You simply will not get paid.
Under certain circumstances, you could also assert your rights under the federal Family Medical Leave Act and California’s Fair Employment and Housing Act to take job-protected, unpaid leave because you are ill.
Contact a Los Angeles Employment Lawyer to Discuss Paid Sick Leave Violations
The issues surrounding paid sick leave and other forms of job-protected leave can be complex. For more information on whether your employer has violated your rights in the workplace, please contact an employment lawyer from Custis Law, P.C. You can set up a free consultation by calling (213) 863-4276 or visiting our website. We can tell you more about your legal remedies after reviewing the details of your claim. Our employment lawyers represent clients throughout Southern California from locations in Los Angeles, Irvine, and San Bernardino.