Updated
Under California’s paid sick leave law, eligible employees can accrue paid time off to use when they are unable to work because of illness or to care for a family member. The time can also be used for reasons other than illness, including:
- Seeking a diagnosis,
- Preventative care, or
- Treatment and safety planning related to domestic violence, sexual assault, or stalking.
Refer to the table below for the voluntary leave policies under the new Families First Coronavirus Response Act (FFCRA):
|
Reason for leave |
Voluntary leave benefits under FFCRA |
|
Up to 2 weeks* of paid sick leave at 100% of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher).
The maximum is $511 a day and $5,110 total. |
Care-taking for a person who either:
|
Up to 2 weeks* of paid sick leave at 2/3 of the employee’s regular rate of pay per pay period (or the applicable state or federal minimum wage, if higher).
The maximum is $200 a day and $2,000 total. |
| Care-taking for a child whose school is closed and childcare is unavailable due to COVID-19.^ | 2 weeks* of paid sick leave at 2/3 of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher); and
Up to 10 additional weeksº of expanded family and medical leave at 2/3 of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher). The maximum pay for these 12 weeks is $200 a day and $12,000 total. |
| *2 weeks is 80 hours (or the equivalent for part-time workers). | |
| ºOnly workers employed at least 30 days prior to the leave request have eligibility for these 10 extra weeks. | |
| ^Employers with fewer than 50 workers could be exempted if it would jeopardize the business’s viability. | |
And on March 19, 2021, Governor Newsom signed into law SB-95. Through September 30, 2021, employers with 26 or more employees must provide COVID-19 supplemental paid sick leave to covered employees unable to work for the following six reasons:
- Seeking a diagnosis after experiencing COVID-19 symptoms; or
- Is self-quarantining upon medical advice or because of a state or local order; or
- Caring for a family member with COVID-19 or who is self-quarantining; or
- Caring for a child whose school or daycare is closed for COVID-19 reasons; or
- Being too sick from COVID-19 to work; or
- Getting vaccinated for COVID-19.
Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. SB-95 is retroactive to January 1, 2021. For teleworking employees, employers may satisfy posting requirements through email.
Employers cannot deny a covered employee’s right to use sick time or retaliate against an employee for using it. An employee may be able to file a lawsuit against the employer for California labor law violations.
Below, our California employment and labor lawyers discuss the following frequently asked questions (faqs):
- 1. Who is eligible for paid sick leave in California?
- 2. How much sick leave can I take?
- 3. Can I take time off to care for my sick child?
- 4. Can my employer say I have to work when I am unwell?
- 5. Can I sue my employer?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group. Also see our overview article on workplace leave laws in California.
1. Who is eligible for paid sick leave in California?
Under California state law, most exempt and non-exempt employees with 30 or more days of employment within a calendar year of starting work are eligible for paid sick leave (PSL). Employees are eligible to accrue a certain number of hours to get paid while on leave for certain reasons, including caring for a family member or when the employee is ill and unable to work. 1
PSL is available for full-time workers, part-time workers, and temporary employees. There are some restrictions for certain employees who do not fall under the California laws for regular employees, including:
- Workers with a collective bargaining agreement,
- In-home supportive service providers, and
- Some employees of air carriers.2
2. How much sick leave can I take?
It depends on the employee, the employer, and the plan. There is a minimum standard required by California law; however, some employers provide additional time off or more generous conditions. Talk to your human resources department with any questions about your company’s policies.
In addition to California’s paid sick leave laws, some cities and counties in California have additional laws that provide greater benefits. This includes cities like Los Angeles, San Francisco, Santa Monica, and San Diego.3
2.1. How much paid sick leave do I get per year?
It depends on the individual’s PSL plan. At a minimum, California law requires 24 hours (or 3 days) of paid sick leave time per 12 month period for full-time employees. Employees earn a minimum of 1 hour of sick leave for every 30 hours worked.4
An employee is entitled to begin using an accrual of paid sick time beginning on the 90th day of employment.5
PSL can also carry over to the next year if an employee does not use their time. However, employers can put a cap on the total amount of accrued sick leave at 48 hours or 6 days.6
2.2. Can my employer provide different rules?
An employer can provide for different sick leave requirements but only where the employer’s policy exceeds the minimum protections provided by California’s laws. For example, a California employer could allow an employee to accrue 2 hours of paid time off for every 40 hours worked. However, the employer could not have employees accrue less than 1 hour of time off for every 30 hours worked.
Certain plans were “grandfathered” in if the employer had a paid time off (PTO) plan that employees could use for PSL if that plan provided for at least as many paid sick days as required by the new law.7
2.3. What happens when my sick leave runs out?
When an employee’s use of PSL runs out and an employee still needs to recover from an illness or care for a family member, the employee will not necessarily be paid. However, the employee may still be protected from losing his or her job under California and federal leave laws.
California laws require payment for accrued time off. However, the employer is not required to keep paying the employee after the employee has used up his or her time off. The employee’s job may still be protected even if he or she is not getting paid.
Leave laws provide job protection for an eligible employee who takes time off to care for a family member, because of an illness, or other covered leave reasons. This means that an employee can return to the same or a substantially similar job when returning from leave. An employer cannot fire, threaten, or retaliate against an employee under-protected leave laws.8910
3. Can I take time off to care for my sick child?
Even though it is generally referred to as “sick leave,” there are other reasons an employee is allowed to use PSL, even if the employee is not unwell. An employee can take PSL to care for a family member. This includes:
- Child, stepchild, foster child, or adopted child;
- Spouse or registered domestic partner;
- Parent;
- Sibling;
- Grandchild; or
- Grandparent.11
PSL can be used to care for a family member in seeking diagnosis, care, or treatment of an existing health condition, or for preventive care.
3.1. What else can I use the time off for?
In California, there are other permissible uses for taking PSL. In addition to caring for a family member, or the employee’s own medical condition, an employee who is a victim of domestic violence, sexual assault, or stalking can use PSL. This includes:
- Relief for the employee or his or her child, including a restraining order;
- Medical attention for related injuries;
- Services from a domestic violence shelter or rape crisis center;
- Psychological counseling; or
- Safety planning against future domestic violence, stalking, or sexual assault.12
4. Can my employer say I have to work when I am unwell?
Under the California Labor Code:
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.13
An employer also cannot require the employee find a replacement as a condition to take PSL.14
5. Can I sue my employer?
An employee may be able to file a civil lawsuit for any violations of California labor laws. This includes failing to provide PSL, provided less than the minimum leave required, not paying an employee who is using accrued time, or otherwise violating sick leave policies.
Employers are also prohibited from retaliation against an employee for taking valid leave, cooperating in a labor violation investigation, or complaining about labor violations. Retaliation includes:
- Demotion,
- Threatening to fire the employee,
- Threatening to report immigration violations,
- Reducing pay, or
- Terminating an employee.
If an employer retaliated against you based on PSL or protected leave, talk to a California labor and employment lawyer about your case and how to get the money you are owed.
Many California employment lawyers represent workers on a contingency basis. This means the lawyer will not get paid until you do. Labor law violations may also require the employer to pay for the employee’s legal costs and fees.
5.1. What are the damages if my employer fired me?
An employee can seek money damages and equitable relief, including reinstatement. Damages in a labor law case may include:
- Back pay;
- Payment for withheld sick days;
- Administrative penalties;
- 3x liquidated damages for wrongfully withheld sick days (up to a maximum of $4,000);
- Interest on back pay; and
- Reasonable attorney’s fees and costs.15
An employer who is violating leave laws may be violating the rights of other employees. In some cases, employees can be part of a class action lawsuit against the employer filed on behalf of multiple employees.
Call our law firm for a free case evaluation.
For questions or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
See also the DIR’s fact-sheet on COVID-19 Supplemental Paid Sick Leave for Food Sector Workers.
Legal References:
- Healthy Workplace Healthy Families Act of 2014(HWHFA), California Labor Code 245. Also see the California Labor Commissioner website.
- Labor Code 245.5(a)
- See, e.g., City of Los Angeles Wage Standards Ordinance and City & County of San Francisco Ordinance.
- Labor Code 246
- Labor Code 246(c)
- Labor Code 246(j)
- State of California Department of Labor: Frequently Asked Questions. New Questions Concerning the PSL Law.
- Family and Medical Leave Act, 29 U.S.C. § 2601
- California Family Rights Act
- Id. See also the Cal/OSHA Emergency Temporary Standards (Cal/OSHA ETS), DIR (employers are required to provide employees “exclusion pay” in certain circumstances).
- Labor Code 245.5(c)
- CA Labor Code, Sections 230, 230.1, and 246.5
- Labor Code 246.5(c)
- State of California Department of Industrial Relations – Healthy Workplace Healthy Family Act of 2014
- Labor Code 248.5