Episode 239 - Frequent Employer Questions About California’s Paid Sick Leave

Welcome to The Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello, listeners. One of the hottest topics we discuss with members on a regular basis is managing an employee's use of leave under California's Healthy Workplace, Healthy Families Act, or what we more commonly call it, California's mandatory paid sick leave. Amongst the major issues employers work through with paid sick leave usage is how to control abuse of the leave and enforce your existing attendance control policies. Managing this leave for all employees requires a solid understanding of the legal requirements of the law and how to apply those to everyday operations and your policies. So to help guide us through this difficult and often confusing process, we welcome back two wonderful guests. First, Bianca Saad, CalChambers General Counsel for Labor and Employment, Thanks for joining me today, Bianca.

Absolutely, Matt. Happy to be here.

Also joining me today is CalChambers Employment Law Counsel Vanessa Green. It's great to have you here again, Vanessa.

Thanks, Matt. It's great to be here.

All right. So of course, we need to set the standards employers have to abide by when we talk about how to manage paid sick leave in the first place. So, Bianca, for the purposes of this discussion, what are some key provisions of paid sick leave we should cover?

Yeah, so the first thing we need to recognize with paid sick leave, or PSL, and for other types of mandated leaves for that matter, is that the law builds in certain rights and job protections for employees. For example, employers can't deny eligible PSL requests even if the request is short notice or negatively impacts operations. Employers can't take negative action against employees for using PSL. Negative actions can include things like termination, threat of termination, suspension or demotion, or even discipline. There's also an anti-retaliation provision that prohibits employers from retaliating against employees for exercising their rights under PSL, including filing complaints with the labor commissioner or internally opposing policies or practices prohibited by the law. Finally, there is a rebuttable presumption that any negative action taken within 30 days of PSL use is retaliatory. Now, while these very strong legal protections provide the reason that employers, of course, need to be careful about managing PSL with their employees, the law doesn't just provide free days off for employees. There are usage and time limits that will help employers to effectively manage this mandated leave.

Okay, so you've laid out a lot of strong legal protections for employees to use this leave, Bianca, and I think that raises a question for me. As an employer, whether I can even have effective attendance policies anymore with those types of protections in place for sick leave. So, Vanessa, let's turn to you. What are your thoughts on maintaining just a general attendance control policy in the first place these days?

I can definitely understand employers having a concern about how to implement an attendance policy these days. I think we want to remember that there's really nothing in the law that prohibits employers from having and enforcing an attendance policy. We just have to be flexible. So one of the more common issues we see with attendance policies are things like automatic point systems, and those are where employees, they're essentially assigned points for absences or tardiness. And then eventually when the employee reaches a certain point threshold, they receive some level of discipline based on the points that they have. Now, this isn't something we can use anymore on an automatic basis because as Bianca described, we can't discipline employees for their paid sick leave usage. So we really need to confirm whether or not an absence or a tardiness is based on the use of protected leave before we assign things like points. Now, the other common thing we see in attendance policies are documentation requirements to make the absence quote unquote excused to avoid penalties. And so one example We get asked about all the time in this regard is, can we require a doctor's note to excuse someone for being sick for the day or for them to be excused for being sick? Another example is, can we require a doctor's note after they've been absent for a set number of consecutive days? If they've been out for more than 3 days or more than 5 days, we get these questions all the time from employers, and we really want you to understand that these types of policies can be problematic. Because we're not allowed to ask for a doctor's note when an employee is using their paid sick leave. So we need to be flexible and really ensure that these requirements are only being applied when appropriate rather than having these blanket requirements.

Okay. And I think that last thing you said, Vanessa, can be a shock to us just in general, because as employers, we want documentation to support the need for the leave. We're trying to prevent abuse. We want to make sure we're providing the leave as appropriate and that the employee is using it for an appropriate purpose. But you just mentioned that we can't really request doctor's notes for this leave under the paid sick leave law. Bianca, why don't you break down for me what does the paid sick leave statute actually say about doctor's notes?

As a matter of fact, Matt, it doesn't say anything at all, and this can certainly add to the confusion about how we use doctor's notes. Now, the California Labor Commissioner, which is the agency that enforces the rules around PSL, in their guidance, it states that the employer may not deny an employee paid sick leave based solely on the lack of a doctor's note. Instead, an employee is entitled to take paid sick leave immediately upon oral or written request. Now, the Labor Commissioner does recognize that abuse may occur, so it provides guidance that it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has information indicating that the employee is not requesting paid sick leave for a valid purpose. Now, of course, it's important for employers to keep in mind that this is only guidance, and a court could rule differently if this made its way to litigation. So it's always a good idea to consult with legal counsel before requesting a note in this type of situation.

Okay, so then for me, Bianca, that makes it incredibly difficult to confirm the reason for the leave and thus control the abuse of the leave. So do you have other thoughts or practices about helping just manage abuse and making sure that the employees are using this leave for its stated purpose?

Sure. So, of course, we want to start with making sure that we are limiting the leave to qualifying reasons. So, PSL can't be taken for any reason. There are specific reasons in the statute, such as care, diagnosis, treatment, or prevention of a health condition for the employee themselves or a qualifying family member, just to name some of the most common uses. Now, asking employees who are taking the leave whether they are taking it for a permissible reason without getting into specific medical diagnoses can help. Another thing we can do is to take advantage of employers' ability to limit the use. So first, the law limits the amount of time to either 5 days or 40 hours, whichever is greater, if an employer is providing that time as a lump sum, or if an employer uses the accrual method, employers still have the ability to cap or essentially limit the amount of usage per a year to 5 days or 40 hours, even if that employee has additional hours accrued in their bank.

All right, Vanessa. So Bianca has given us a couple of tips to use here around even just asking the questions, making sure the use is appropriate, and establishing some policies to limit the use within the confines of the law. So let's put this all together and walk through a typical scenario we would see and then how we would respond under one of these attendance control policies that you say we can still have. So Vanessa, an employee calls in right at the start of their shift saying they won't be in. This employee has missed some time recently for non-protected reasons. They've just been in and out recently. And this absence, if it's unexcused under the policy, would then require discipline under that policy. So Vanessa, how would you walk through an employer in handling the situation?

So first, we want to find out the reason for the leave. Is it a permissible reason under the sick leave law? Is it just for personal reasons? Is there any other protection that come up? So we need to ask the employee the reason for calling out. If it is for sick leave purposes, then we need to ask them if they will be using their paid sick leave, assuming they have paid sick leave time available. So remember, it's the employee's choice whether they wanna use their paid sick leave, and if they do, then that time off is protected. So if the employee chooses not to use paid sick leave, or if they don't have any available, then we can treat this as an absence or an occurrence or require a doctor's note even if they are sick, but that has to be in accordance with our normal attendance rules. In other words, just because an employee is calling out sick doesn't automatically mean the time off is protected, right? It's when they're using their paid sick leave that employees have that protected time off. And then lastly, let's say we have maybe some concerns here because this employee's been calling out and missing work a lot, that there could be an underlying medical condition that's leading to this absenteeism. So that makes us think, okay, maybe we want to open up the interactive process here just in case before choosing to discipline this employee for the absence, because maybe there's something more going on here that would require us to look at this more in depth. So for employers who have questions about paid sick leave or other time-off requirements, We have an upcoming webinar on this very topic. We hope you'll join us because we're going to be covering the topic of paid sick leave in more detail and also taking questions from participants and talking about other types of time off.

Excellent. I think that'll be a fantastic resource. And really, the exercise you just walked us through, Vanessa, highlights, you know, how you can maintain these policies but do so in a careful and compliant manner. And it really looks like it's just, it's a lot of communication and it's a lot of deliberation over, you know, why we're taking the leave and how much time they have in the bank and which banks that they're using. Thank you again for that, Vanessa. And Bianca and Vanessa, both of you for taking some time to be here with me today to clear up some of these common issues with administering paid sick leave plans here in California.

Thanks for having me, Matt. Always a pleasure.

Thanks, Matt.

And thank you, listeners, for joining this discussion on the workplace. Please share and subscribe to CalChambers Podcast. By visiting Cal Chamber.