Seyfarth Synopsis: Employers are usually mindful of the many laws governing employee medical leaves and how they interact. But what about accommodation for non-medically necessary leaves? This post discusses the basics of employee leaves for elective medical procedures.

California employers who administer employee leave laws navigate a complicated labyrinth. Employers must consider interactions among federal laws (ADA, FMLA, Title VII), state and local laws (CFRA, FEHA, PFL), and even their own internal employer policies. It gets even more complicated when employees would like to take medical leave for procedures that aren’t medically necessary, but rather are elective. So what is an employer to do when an employee says they want to take two weeks off for that nose job or tummy tuck?

“Tell Me What You Don’t Like About” California Laws—The Basics

The FMLA and the CFRA both entitle qualifying employees to up to 12 weeks of unpaid leave per 12-month period for an employee’s own “serious health condition” that prevents them from performing their essential job functions. A serious health condition is defined broadly as an illness or injury that involves inpatient care, a period of incapacity of more than three consecutive calendar days that also involves treatment by a health care provider, or a chronic condition requiring treatment. It follows then, that elective procedures in and of themselves do not qualify as a serious health condition that would require protected medical leave, absent some complication (discussed below).

Employers should also note that elective procedures aren’t just limited to lifts and augmentations. Elective procedures fall within a broad range that includes such varied items as treatment for acne and orthodontics.

Whatever the reason for medical leave may be, an employer may require medical certification of the employee’s serious health condition. If there is reason to doubt the validity of the certification, the employer can usually go so far as to get a second opinion. If an employee refuses or fails to provide the certification, the leave request could be delayed or even denied.

Importantly, under federal law, the medical provider can be asked to state the diagnosis or medical facts supporting the need for the leave; however, California law is different. Here, whether the leave is requested under CFRA or the FEHA, the employer is limited to obtaining a certification from a qualified provider that the leave is needed as an accommodation for a medical condition or disability, and the expected duration of the leave. This begs the question of how the employer is to know that the leave is for an elective procedure.  Since the employer cannot ask, the information is usually shared voluntarily by the employee or his/her medical provider.

You’ve Got A New Wrinkle?—Leave Complications

While the laws are clear that purely elective procedures aren’t covered by FMLA/CFRA statutory leave, there is a complication: where a serious health condition arises out of an elective procedure. That is to say, an elective procedure can result in inpatient care in a hospital, where complications develop. In this situation, provided that the employer receives proper notice, employees may qualify for statutory protected leave.

Another wrinkle that employers should know is that restorative dental or plastic surgeries after an injury or removal of cancerous growths are considered serious health conditions for which protected leave is required, provided the presence of the other conditions constituting a serious health condition.

“Appearance Is Everything”—Post-Op Disability Leave Checklist

Frequently, employers face situations where an employee cannot return to work after a 12 week FMLA/CFRA medical leave is up. What’s next?

This situation can trigger an interactive process under the ADA/FEHA, in which the employer and employee must work together to see what reasonable accommodations, if any, can enable the employee to perform the essential job functions. Strong interactive process procedures, including ongoing communication with the affected employee (where possible), are staunch tools in an employer’s possible defense to some ensuing discrimination claim.

One possible reasonable accommodation may be a further leave of absence. But both the FEHA and the ADA allow an employer to avoid providing further leave of absence if it would be not be reasonable to do so. California courts have concluded that employers need not provide an indefinite leave of absence as a reasonable accommodation. Each case must be addressed on a case-by-case basis, and there is no one-size-fits-all solution when it comes to reasonable accommodations.  Moreover, a reasonable accommodation need not be provided if it would create an “undue hardship” for the employer.

Workplace Solution: Leave laws are complicated, as each leave law has its own intricacies, compounded when one considers the law’s interactions with other law. So whether you’re looking to makeover your current leave policies or augment your knowledge base, you can always contact your Seyfarth attorney to address any areas that need touching up.

Seyfarth Synopsis: In leaves of absence, as in employment law generally, California can be peculiar. We examine at a few examples, including particular city ordinances in Emeryville and San Francisco, and other statewide oddities such as voting, organ/tissue donation, and reckless student leave.

In the weird, wonderful, and often complex world of California leave laws, there are many familiar species. However, alongside the more commonplace military, disability, and medical leaves, California and its municipalities also recognize a wide array of strange, surprising, and uncommon leave categories:

  • “The Secret Life of Pets,” in Emeryville: Fortunately for employers (although perhaps unfortunately, for those of us who are dog and cat lovers), California has not exactly mandated “paw-ternity” leave just yet… But, we’re clawing our way closer! In June 2015, the city of Emeryville passed a paid sick leave ordinance allowing employees to use paid sick leave to care for a designated individual, if the employee has no spouse or registered domestic partner. Even Fido can be covered since the ordinance allows employees to use paid sick leave to provide care for a guide dog, signal dog, or service dog.
  • “Homeward Bound,” in San Francisco: San Francisco recently passed paid parental leave for most employees. And, San Francisco also has a different ordinance granting expansive paid sick leave, which allows workers to take time off to care for both family members and a “designated person” when they need medical care or attention. The designated person can be anyone the employee chooses, as long as their name is on file with the employer before the employee uses the leave. San Francisco’s paid sick leave ordinance covers almost any type of employee, including undocumented workers and household employees, such as caregivers, cooks, and house cleaners.
  • The “Shaggy” Troublemaker Student: Does your employee have a kid who has been sent to the principal’s office one too many times? According to California Labor Code § 230.7 and California Education Code § 48900.1, that employee is entitled to protected unpaid time off work if their child faces suspension from school. This applies to all employers regardless of the number of employees, as long as the employee provides reasonable notice to the employer.
  • Voting—“An American Tail”: Does your employee need to leave early to partake in the democratic process? California Election Code §14000 provides that an employee without sufficient time outside of his or her normal working hours to vote may take up to two hours off work to vote without loss of pay. The time off should be during the beginning or end of a regular working shift, and the employee is required to provide notice to their employer at least two working days in advance to arrange for voting time.
  • All Donators “Go to Heaven”: If your employee decides to help save a life and donate an organ or bone marrow, the employee is likely to need time off of work. In 2011, as the winner of a state senator’s “There Ought to Be a Law” contest, a new law was passed requiring employers to provide employees the opportunity to take leave to donate their own human tissue. Thus, California Labor Code § 1510 requires private employers with more than 15 employees to provide paid leaves of absence for organ and bone marrow donation.

These are just a few of the unusual protected leaves you may be faced with as an employer in California. And these bizarre rules are a good reminder that when dealing with employees and leaves in California, it may be best to tread cautiously. If reading this post sparked any questions, musings, or ponderings in your mind about California leave laws, your friendly neighborhood Seyfarth attorneys are available to advise on potential workplace solutions.

Seyfarth Synopsis: After hitting some major roadblocks, the San Diego Earned Sick Leave and Minimum Wage Ordinance has now been enacted. The Ordinance is to take effect this summer, most likely by the end of July. The Ordinance adds another perplexing piece to California’s paid sick leave patchwork.

After taking a nearly two-year hiatus, the San Diego Earned Sick Leave and Minimum Wage Ordinance was finally enacted on June 7, 2016, by San Diego voters. The Ordinance, originally approved by the San Diego City Council on August 18, 2014, hit a major snag when opponents sought a referendum. The City Council responded by suspending the Ordinance pending voter approval. The voters have now spoken.

San Diego joins six other California municipalities—San Francisco,[1] Oakland, Emeryville, Los Angeles,[2] Santa Monica,[3] and Long Beach[4]—that now supplement California sick pay law with additional paid sick leave entitlements. Because the statewide paid sick leave law does not supersede local ordinances, employers must comply with both the state and local laws, whichever most favors employees.

While the Ordinance’s effective date is currently unclear, signs point to a July 2016 effective date. We, of course, will keep you posted on any developments. In the meantime, employers should take steps now to ensure their policies and practices comply with the impending law.

Below is a detailed summary of the Ordinance and the key obligations it imposes on employers. Most notably, the Ordinance does not set a cap on either the amount of earned sick leave that employees can accrue in a year or the amount of unused earned sick leave that employees can carry over from year to year. The Ordinance also increases the minimum wage that San Diego employers must pay. The minimum wage will increase to $10.50 once the Ordinance goes into effect and will increase to $11.50 per hour on January 1, 2017. Starting January 1, 2019, the minimum wage will increase to an amount correlating with the cost of living.

Which Employers Are Covered by the Ordinance?

The Ordinance will cover all employers with at least one eligible employee working in San Diego, and defines “employers” as any person (including any association, organization, partnership, business trust, limited liability company, or corporation) who exercises control over the wages, hours, or working conditions of any employee, who engages an employee, or who permits an employee to work. Employers do not include persons who receive in-home supportive services care, under state law.

The Ordinance notes that covered employers need not provide additional earned sick leave where they provide their employees with an amount of paid leave under either a paid time off or other paid leave policy that meets or exceeds the Ordinance’s minimum standards and requirements, including the protected conditions and reasons for using sick leave.

Which Employees Are Covered by the Ordinance?

The Ordinance broadly defines a covered employee as one who performs at least two hours of work within the City of San Diego in one or more calendar weeks of the year and who qualifies as an individual entitled to minimum wage under California minimum wage law.

The following individuals are not subject to earned sick leave or the minimum wage increase:

  • Individuals authorized to obtain less than the minimum wage under a special license pursuant to California Labor Code sections 1191 or 1191.5.
  • Persons employed on a publicly subsidized summer or short term youth employment program.
  • Any student employee, camp counselor, or program counselor of an organized camp.
  • Independent contractors.

Earned Sick Leave Overview

How Much Sick Time Can Employees Accrue, Use, and Carry Over?

Employees accrue one hour of paid, earned sick leave for every 30 hours worked, at the same hourly rate or other measure of compensation that the employee earns. Accrual for employees exempt from California’s overtime laws is based on a 40-hour workweek, unless the employee’s regular workweek is less than 40 hours, in which case accrual is based on the regular work week. Employees will begin accruing earned sick leave on the later of the Ordinance’s effective date or the employee’s commencement of employment, and employees can begin using their accrued time 90 days thereafter.

Employers may limit use of sick leave to 40 hours in a 12-month period and can set a reasonable minimum increment for using sick leave, not to exceed two hours. Importantly, and as noted above, while the Ordinance sets an annual usage cap, accrual itself cannot be capped. In other words, employees must be allowed to accrue as much earned sick leave as possible based on their hours worked. Making matters worse for employers, unused leave, in whatever amount, must be carried over at year-end. In essence, employees can carry over an unlimited amount of accrued, unused sick leave, but may be limited to using 40 hours per calendar year. This accrual provision of the Ordinance is much more expansive than California’s statewide paid sick leave law, which provides that employers may cap the amount of accrued leave at 48 hours or six days, whichever is greater.

This distinction is problematic because it increases the risk of employee confusion. California law requires employers to provide employees with notice of their available number of sick leave hours either on the employees’ pay stubs, or in separate writings issued the same day as the employees’ paychecks. An employee who has, for example, 140 hours of accrued leave may not understand why only 40 hours of leave is available to use within a 12-month period.

The Ordinance’s unlimited accrual and carryover caps also make it risky for employers who seek to front-load earned sick leave in the form of an annual lump grant. Unlike the California statewide sick leave law, the Ordinance is silent on whether front-loading removes an employer’s accrual and year-end carryover obligations. As a result—and barring any future guidance from the City—this alternative sick leave delivery method may be unavailable to San Diego employers.

Under What Circumstances May Employees Use Sick Leave?

Qualified employees may use their earned sick leave for any of the following reasons:

  • If an employee is physically or mentally incapable of performing duties because of an illness, injury or medical condition, or is absent for the purpose of obtaining professional diagnosis or treatment of a medical condition or for other medical reasons, such as pregnancy or obtaining a physical examination.
  • If an employee is absent from work due to a family member’s[5] need to obtain treatment or professional diagnosis of a medical condition, or to provide care or assistance to a family member with an injury, illness or medical condition.
  • If, under certain circumstances, the employee or the employee’s family members are absent because of domestic violence, sexual assault or stalking.
  • If, by order of a public official because of a public health emergency, there is a closure of the employee’s place of business or the employee’s child’s school or child care provider.

What Notice Must Employees Provide When Using Sick Leave?

If the use of earned sick leave is foreseeable (e.g., scheduled doctor’s appointments), then an employer may require employees to provide up to seven days’ notice. But if use of sick leave is not foreseeable (e.g., a sudden illness), then an employer may require only as much notice as is practicable.

What Documents Can Employers Ask Employees to Provide When Using Sick Leave?

If employees are going to be absent for more than three consecutive work days then an employer may require employees to provide reasonable documentation that the employee used earned sick leave for a permitted purpose. Employers must accept doctor’s notes or other documentation signed by licensed health care providers indicating the need for the amount of leave taken. An employer however, may not require that the note specify the nature of the injury, illness or medical condition.

Is an Employer Required to Pay Unused Time upon Employment Separation?

No. Employers are not required to pay an employee for unused accrued sick leave upon termination. However,when an employee is rehired within six months of separation, the employer must reinstate the employee’s previously accrued, unused sick leave that was not paid upon separation, and the employee is entitled to use said leave.

Minimum Wage Increase Overview

What is the New Minimum Wage and When does it Go Into Effect?

Employees must be paid a minimum wage of $10.50 an hour upon the Ordinance’s effective date, which, again, we anticipate will occur in July 2016. Starting January 1, 2017, the minimum wage will increase to $11.50 an hour. Starting January 1, 2019, the minimum wage will increase by an amount corresponding to the prior year’s increase, if any, in the cost of living, as defined by the Consumer Price Index. If however, California or federal laws provide a higher minimum wage rate, then the minimum wage under this Ordinance will be increased to match the higher California or federal wage, effective on the same date that the increased California or federal wage takes effect.

Employer Obligations under the Ordinance

Employer Notice Requirements

Employers must post notices published by the City in a conspicuous place in the workplace informing employees of the current minimum wage, their right to the minimum wage, and their right to earned sick leave. The notice must also include information about the accrual and use of sick leave, the right to be free from retaliation, and the right to file a complaint with the designated enforcement office. The posted notice must be in English, Spanish and any other language spoken by at least five percent of employees at the employer’s job site.

In addition, at the time of hire or on the Ordinance’s effective date, employers are required to provide employees with written notice of the employer’s requirements under the Ordinance, and the employers name, address, and telephone number. Electronic notice is permitted.

Records Maintenance Requirement

Employers must create written or electronic records documenting employees’ wages earned, and accrual and use of sick leave, and retain these records for at least three years.

Prohibitions

Employers are prohibited from (1) requiring employees seeking to use their sick leave to search for or find a replacement worker, (2) disclosing the medical condition of the employee or his or her family member unless ordered to do so by the employee or authorized by federal or state law, and (3) retaliating against an employee who exercises his or her rights under the Ordinance.

Remedies/Penalties

An employer that violates any requirement of the Ordinance is subject to a civil penalty for each violation of up to, but not to exceed, $1,000 per violation. An employer failing to comply with the notice and posting requirements is subject to a civil penalty of $100 for each employee who was not given appropriate notice, up to a maximum of $2,000. Additionally, employees may file a complaint with the designated enforcement office or in court. Notably, filing a complaint with the enforcement office is not a prerequisite to filing a claim in court.

What Should Employers do Now?

With the Ordinance’s effective date looming, San Diego employers should take steps now, including the following, to achieve compliance:

  • Review existing sick leave policies and either implement new policies or revise existing policies so that they satisfy the Ordinance.
  • Post the required notices in all applicable languages.
  • Prepare notices in all applicable languages to provide to employees at the time of hire or once the Ordinance is implemented.
  • Review policies on attendance, anti-retaliation, conduct, and discipline.
  • Train supervisory and managerial employees, as well as HR, on the new requirements.
  • Ensure that payroll records adequately reflect accrual and use of earned sick leave and the increase in minimum wage.

[1] On June 7, 2016, San Francisco voters approved an amendment to the San Francisco Paid Sick Leave Ordinance.  The amended San Francisco law becomes effective on January 1, 2017.

[2] As discussed here and here, the Los Angeles City Council in April 2016 voted for 48 hours of paid sick leave for Los Angeles employees as an amendment to an LA City minimum wage ordinance. The LA ordinance is effective July 1, 2016.  Further, certain hotel employers must comply with additional compensated time off obligations set forth in the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance.

[3] The Santa Monica paid sick leave law is effective January 1, 2017.

[4] Long Beach Resolution No. RES-12-0049 establishes paid sick leave and minimum wage requirements for certain hotel employers.

[5] Family members include an employee’s child, spouse, parent, grandparent, grandchild, sibling (including step-siblings), whether biological or not, or the child or parent of a spouse.

Seyfarth Synopsis: The Los Angeles City Council has voted and the Mayor has signed the ordinance.  As of July 1, 2016, many employees within the City of Los Angeles will be entitled to accrue 48 hours of paid sick leave per year. The ordinance has a number of unusual and specific provisions that employers need to be aware of, described in detail below.  Link to the Ordinance here.

Not content with California paid sick leave law (discussed here, here and here), several California municipalities have piled on. Their local ordinances require employers with employees working within their geographical boundaries to provide paid sick leave over and above what California law requires (California Labor Code Sections 245-249). The City of Angels is now poised to put a peculiar L.A. spin on paid sick time. The state paid sick leave law does not supersede local ordinances, and employers must comply with both the state and the local laws, whichever is more favorable to employees.

By a 13-1 vote on April 19, 2016, the Los Angeles City Council voted in favor of 48 hours of paid sick leave for Los Angeles employees as an amendment to a L.A. City minimum wage ordinance. That amount is double the annual amount of paid sick leave available under California’s state-wide sick pay law (24 hours/3 days). Following the initial vote, the City Council asked the City Attorney to draft the ordinance. Two versions of the ordinance were drafted and after confusing repeated voting on June 1, 2016, we are informed that one version has passed. The paid sick leave provisions are found in Article 7 of Chapter XVIII of the Los Angeles Municipal Code, Section 187.04 (A)-(I)). We are informed that one version has passed.

Coverage. Unlike state law, which contains exceptions for construction workers, certain home health workers, flight crews, and workers covered by union agreements (if certain conditions are met), the L.A. ordinance has no exceptions. The minimum wage provisions of the ordinance distinguish between larger employers (26 or more employees) and smaller employers (25 or fewer employees) for implementation timing—smaller employers have until July 1, 2017. It is uncertain from the text whether a similar grace period before implementation of paid sick leave for exists for smaller employers; at least one City Council member’s office confirmed the grace period for small employers applies to sick leave. Employees who work 30 days in Los Angeles within a year “from the commencement of employment” are covered (similar to the California state paid sick leave law).

  • Employee” is defined to include all individuals who perform two or more hours per week within the geographic boundaries of the City.
  • Employer” is defined as including “a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.” Thus, the ordinance appears to hold corporate officers and executives individually accountable.

Accrual and Use. Current employees must begin accruing or receive a grant of sick leave on July 1, 2016. Employees hired after July 1, 2016, will begin to accrue or will be granted paid sick leave on their date of hire. Employees may use paid sick leave beginning on the 90th day of employment or July 1, 2016, whichever is later. L.A. employees will be entitled to use up to 48 hours of sick leave in “each year of employment, calendar year or 12-month period.” Accrued unused paid sick leave shall carry over to the following year of employment, but may be capped at 72 hours. Employers may set a higher cap or no cap at all (having no cap is not recommended).

Employers have a choice of either (1) providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period (“lump grant”) or (2) having sick leave accrue at the rate of one hour of sick leave per every thirty 30 hours worked (“accrual”). While both the “lump grant” method and the same accrual rate are allowed by the state law (the state law has additional accrual options not allowed by the L.A. ordinance), state law provides that if an employer uses the “lump grant” design, then unused sick leave does not carry over and unused balance is simply replaced by the new lump grant. L.A. is different. Under the L.A. ordinance, up to 72 hours must carry over year to year. So, while an L.A. employee can use only 48 hours of sick pay in a year, the employee can carry over 72 hours of paid sick leave (or more, if the employer allows it).

L.A. employers need not pay out unused L.A. sick days upon termination. If an employee separates and is rehired within one year, then previously accrued and unused paid sick time must be reinstated. Unlike state law, the L.A. ordinance has no exception to reinstatement of sick time if paid sick leave was paid out on termination (as undifferentiated paid time off or “PTO” must be paid out).

Family Members and Equivalents. Sick leave under the L.A. ordinance can be used on the employee’s written or verbal request for all of the reasons stated in the California state paid sick leave law:

  • the employee’s own health care needs (including treatment of an existing health condition and preventative care) or
  • a covered family member’s health care needs (includes treatment and preventative care), or
  • to seek aid, treatment, or related assistance for domestic violence, sexual assault, or stalking.

The universe of family members is broader under the L.A. ordinance, however. Family includes not only children (biological, adopted, step, loco parentis), siblings, spouses, registered domestic partners, parents (including parents of the spouse or domestic partner), grandparents, or grandchildren, but also “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” No clarification is provided about what it takes to be equivalent to family or how an employer can verify family equivalency.

Documentation.  The version of the L.A. ordinance which passed states, “An Employer may require an Employee to provide reasonable documentation of an absence from work for which paid sick leave is or will be used.” The other version omits any reference to the employers’ ability to obtain documentation (like the California state law).

Other L.A. Peculiarities. The L.A. ordinance has a number of specific additional provisions, such as:

  • It contains an urgency provision that would make the ordinance effective immediately; but provisions in the ordinance start accrual and use of sick leave no earlier than July 1, 2016.
  • It also contains a provision that if an employer “has a paid leave or paid time off policy or provides payment for compensated time off, that is equal to or no less than 48 hours, no additional time is required.”
  • It does not address advance notice for using sick time.
  • It has an anti-retaliation provision that appears to apply to employees who mistakenly but in good faith allege noncompliance and to create a rebuttable presumption of retaliation when adverse action is taken against an employee within 90 days of protected activity. A separate article provides for agency enforcement by fines and having to post “a notice of correction,” as well as traditional remedies in civil courts such as restitution, injunctions, reinstatement and back pay.
  • It designates an administrative agency, the Office of Wage Standards of the Bureau of Contract Administration, as bearing administrative/enforcement responsibilities and states that this agency “may promulgate guidelines and rules for the implementation” of the ordinance. Worthy of note: this agency may “allow an Employer’s established paid leave or paid time off policy or one which provides payment for compensated time off to remain in place and comply with this article even though it does not meet all the requirements in Section 187.04, if [the agency] determines that the Employer’s established policy is overall more generous.”

Most existing paid sick leave policies will need significant changes to make them compliant with this new L.A. ordinance. Possibly, more interpretive guidance and rules will be forthcoming from a designated administrative agency.

Questions?  Don’t hesitate to reach out to your Seyfarth attorneys if you need assistance bringing your company into compliance with this new ordinance.  July 1st is not far away!

Edited by Coby M. Turner.

Seyfarth Synopsis:  Starting Jan 1, 2018, the amount of benefits paid to employees on paid family leave and state disability will increase substantially, depending on an employee’s income level.

The Legislature and Governor have been keeping very busy. On April 11, 2016, Governor Jerry Brown signed into law AB 908, which will, though effective January 1, 2017, increase, for periods of disability commencing on or after January 1, 2018, the benefits provided to individuals in the Paid Family Leave (PFL) and State Disability Insurance (SDI) programs. The new law will increase the level of benefits from the current level of 55 percent to either 60 or 70 percent, depending on the applicant’s income. The new law will also remove, effective January 1, 2018, the seven-day waiting period before which individuals would be eligible for family temporary disability benefits.

The PFL program provides up to six weeks of wage replacement benefits to workers who take time off work to care for a seriously ill or injured family member or to bond with a minor child with one year of birth or placement of the child in connection with foster care or adoption. The SDI program provides benefits to individuals who are unable to work because of their own illness or injury.

In his press release, Governor Brown was quoted as saying: “Families should be able to afford time off to take care of a new child or a member of their family who becomes ill.” The press release further touted the legislation as improving “an individual’s ability to take up to six weeks off to bond with a new child or care for an ill family member.”

The Paid Family Leave program affected by this legislation was enacted in 2002. It is funded through worker contributions and is administered by the Employment Development Department in tandem with the State Disability Insurance program.

This legislation comes on the heels of Governor Brown last week signing legislation raising California’s minimum wage, in a series of annual steps, to at least $15 per hour statewide.

 

On April 5, 2016, San Francisco became the first American jurisdiction to mandate fully paid parental leave for parents to bond with their child.  California already provided six weeks of partially paid leave through the state disability insurance program (55% of pay, up to $1,129 per week).  But the Paid Parental Leave Ordinance passed by the San Francisco Board of Supervisors compels employers to make up the difference, providing full pay for all six weeks of leave for most employees. The ordinance is effective January 1, 2017.

Why Does The Ordinance Only Apply To Most Employees? 

Employees must have been employed by their employer for at least 180 days before starting the leave period to be eligible.  Covered employees can be part-time or temporary employees, but they must spend at least 40% of their total weekly hours (and 8 hours per work week) for the employer within the geographic boundaries of San Francisco. Also, employees who qualify for the maximum state benefit are entitled only to a maximum benefit derived by dividing the state’s maximum benefit by the percentage of wage replacement under the California Paid Family Leave Law.  To be eligible for the supplemental compensation under the ordinance, employees must agree to allow their employer to apply up to two weeks of unused accrued vacation leave to help meet the employer’s obligation to provide supplemental compensation.

Which Employers Does The Ordinance Cover?

As of January 1, 2017, the ordinance will apply to all employers who regularly employ 50 or more employees, regardless of location.  Over the following year, the ordinance will be phased in until employers with just 20 employees or more must comply after January 1, 2018.

Where an employee works for more than one covered employer, the employers must contribute pro-rata based on the gross weekly wages received from each employer.  If an employer terminates an employee during the California Paid Family Leave period, then, under the ordinance, the employer must continue to pay supplemental compensation for the remainder of the leave period.

Note that rights under the ordinance can be waived through collective bargaining.

So What Happens Next?

Employers need to be aware that the ordinance includes notice and posting requirements, employer recordkeeping requirements, and anti-retaliation provisions.  The ordinance provides for regulatory implementation and enforcement by the San Francisco Office of Labor Standards Enforcement, as well as a private right of action.  Remedies include restitution, liquidated damages, and injunctive relief, plus attorneys’ fees.

Many larger employers already have leave policies that comply with the ordinance, but many other employers do not.  Employers need to make sure that they have compliant policies in place by the time the law goes into effect next year.  And employers not based in San Francisco, but who have employees who work there, must be especially careful not to run afoul of the new requirements.

If you have any questions about the new San Francisco Paid Parental Leave Ordinance, please reach out to Scott Atkinson or another member of our California Workplace Solutions group for additional guidance.

Edited by David Kadue and Coby Turner.

(Illustration) Sick PayBy Kristina M Launey

The Labor Commissioner has issued a new and updated set of FAQs interpreting California’s new Paid Sick Leave Law (AB 1522 of 2014).

If you’ve been following along, you know that after passage of the new law last year, the Labor Commissioner issued a template Poster and Wage Theft Prevention Notice for employers to use and post, as well as a first set of FAQs.

The new FAQs obligate employers to inform existing employees of the new sick pay law and changes in policy via the Wage Theft Notice, provide guidance regarding when such notice must be given to existing employees, and provide guidance regarding sick leave eligibility for seasonal or break-in-service employees, as well as part-time and alternative work schedule employees.

Wage Theft Prevention Notices: Employees hired before January 1, 2015 must receive a new Notice that contains the new information regarding paid sick time under amended Labor Code section 2810.5, even if there is no change in employer policy.

Employers must give all employees (not just those hired after January 1, 2015) a new Wage Theft Prevention Notice, announcing any change to paid sick leave, within seven days of the actual change. Although the FAQs are silent on this point, note that Labor Code section 2810.5,  which requires Wage Theft Prevention Notices, applies only to non-exempt employees.

The “date of actual change” would depend on when the employer either establishes a paid sick program under the paid sick leave law or changes an existing paid leave program to comply with this law, but would be no later than July 1, 2015. Thus, the last date to provide notice of changes would be no later than July 8, 2015 (seven days after the July 1 sick leave entitlement effective date).

Employers who do not want to issue new Wage Theft Prevention Notices to all current employees may instead inform those employees of the change to paid sick leave by using an alternative method authorized by Labor Code section 2810.5(b)(1) or (b)(2) (e.g., giving notice of change in a pay stub or itemized wage statement). Employers who choose this route should take care to follow the requirements of these alternatives and keep records of having provided those employees with the notice.

Even employers whose existing policy satisfies the minimum requirements of the law must still provide notice—via the new Wage Theft Prevention Notice or an alternative method—regarding the new paid sick leave law. The notice must contain information about the new paid sick leave law and how the employer intends to meet its requirements for the particular employee. For example, a timely writing provided to each employee that refers to or summarizes the existing policy and contains the points of information specified in the revised Wage Theft Prevention Notice would comply with the individual notice requirement. Continue Reading CA Paid Sick Leave Update: Labor Commissioner Issues More FAQs

By Kristina Launey and Christie Jackson

On August 30, 2014, California Governor Jerry Brown commented on the Legislature’s passage of a bill entitled the “Healthy Workplaces, Healthy Families Act of 2014”: “Tonight, the Legislature took historic action to help hardworking Californians. This bill guarantees that millions of workers – from Eureka to San Diego – won’t lose their jobs or pay just because they get sick.”  The bill, which he signed into law September 10, will require employers statewide to provide paid sick leave.

Though the requirement that employees receive paid sick leave under the Act does not kick in until July 1, 2015, the Act already has employers sweating the law’s myriad of new provisions, mindful of the compliance headaches the new law’s vagaries are certain to bring. If only there were a vaccine… For now, as is often the case, the only sure cure is prevention. Awareness and proactive preparation is the only way to weather the worst of this latest legislative virus.

Employees May Earn 24 Hours of Paid Sick Leave Per Year: The Act grants a right to earn paid sick days to employees who—on or after July 1, 2015—work in California for 30 or more days within a year. Paid sick days will accrue at the rate of one hour for every 30 hours worked. The employee may use the accrued sick days beginning on the 90th day of employment. Exempt employees’ accrual is based on a presumed 40 hour-workweek; except that an exempt employee whose normal workweek is fewer than 40 hours will accrue paid sick days based on that employee’s normal workweek.

An employer can limit use of paid sick days to 24 hours or three days in each year of employment. No accrual or carry over is required if the full amount of leave is received at the beginning of each year. The Act does not require extra paid sick days to be paid by employers whose paid time off policies already provide as many sick days as the Act now requires.

Qualifying Reasons for Use:  Continue Reading New Sick Pay Law Will Nauseate Some California Employers

By Jonathan L. Brophy

Employees are often shocked to learn that employers are not required to provide paid vacations. But it’s true. Legal guarantees of paid leave abound in other advanced economies, but not in the United States, and not even in California. Indeed, the effect of California law is to discourage employers from voluntarily providing paid vacation, because California peculiarly mandates that if the employer offers paid vacation, then the vacation pay must be deemed to vest, with any unused portion being due when employment ends. So “use it or lose it” policies, for example, are not enforceable in California.

In response to this annoying California peculiarity, some employers have considered adopting “no vacation” policies, and “unlimited time off” policies for exempt employees. Below is a quick primer on such policies and some issues to consider before changing existing policies. Continue Reading Vacation: No Pay for My Time Off? Exploring the Nuances of Unlimited or No Paid Time Policies

By: Lindsay Fitch

Just when you thought you finally understood employee rights and employer obligations under the Family and Medical Leave Act (“FMLA”), you realize that you are in California, where employee privacy rights loom large and the California Family Rights Act (“CFRA”) also comes into play.  Although both laws are intended for the same purposes—to provide employees of larger employers with protected time off for various medical conditions and family situations—the CFRA tightens the reins on the information available to the employer.  Of course you want to give your employees what they need, but you also want to make sure the request is legitimate. 

So, as a California employer, what are you entitled to ask your employee about the need for CFRA leave?  Far less than under the FMLA, it turns out.  You can ask: 

        Is the employee qualified?  Under both the FMLA and CFRA, employees are qualified for leave when they have a serious health condition or when they need to care for a family member with a verified serious health condition.  A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves one of the following: 

  •       Hospital care
  •      Absence (incapacity) plus treatment  
  •      Chronic conditions requiring treatment
  •      Permanent/long term conditions requiring supervision
  •      Multiple treatments for certain (non-chronic) conditions
  •      Pregnancy (a serious health condition under FMLA, but not under CFRA) 

        How Should I Know?  I’m Not a Doctor.  Fortunately, you can require a medical certification to verify the serious health condition, which must include some specific information to be sufficient. Continue Reading Mysterious Leaves of Absence: How Do I Know If An Employee Qualifies For Leave If I Can’t Ask About Their Condition?