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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. While much of our focus as employers settles on making sure we are up to date on cutting edge issues, we find that there are long standing requirements that may still cause confusion due to their complexity, especially in the area. We have found that California's paid sick leave law, which has been effective for the last 10 years, is one of those requirements that has been increased complex and has created quite a bit of confusion because of the volume of rules and restrictions imposed on employers. It's no wonder that these areas of law continues to spur confusion. So to help demystify some of the problem areas, we welcome back Erica Barbara, Cal Chambers, Senior Employment Law Council thank you for being here today, Erica.

Hi Matt. Glad to be here with you today to talk about all things paid sick leave.

Oh, I know it's our favorite pastime is paid sick leave. For sure. We do like talking about it. We talk about it quite a bit. So as we dive into the more tricky issues with paid sick leave, I'm just gonna cover the bare basics real quick so we can kind of push that off to the side and focus on what's really causing the confusion here. Now, as we remember, nearly all employers must provide all of its employees, whether full time, part time, seasonal, et cetera, with paid sick leave under the law. Now, employers usually meet this requirement by either providing one hour for every 30 hours actually worked or, or by front loading currently 40 hours or five days, whichever is greater for the employer based on their workday annually. So for example, every January 1st, I give you a new five days or 40 hours. So now that we know that this time is provided to all of our employees and how much we provide to them, let's go through some of the more difficult administrative matters, starting with just usage itself. So Erica, what can they use paid sick leave for and how do we communicate that to the employees to try and help ensure they're not trying to use it for an impermissible reason?

Yeah, so employees can use paid sick leave when they're unable to work either because they or a family member is sick or needs medical care or treatment. Now, the law defines family member to include a child, parent, spouse, registered domestic partner, grandparent, grandchild or sibling. And employees can also use paid sick leave for what the law refers to as a designated person, which is essentially anyone that the employee chooses. We are, however, able to limit an employee to just one designated person per 12 month period. Now, the reasons that employees can use paid sick leave were expanded a bit this year. So as of January 1st of 2025, paid sick leave can be used if an employee or their family member, and that's the expansion, is a victim of a qualifying act of violence and needs time off work to attend legal proceedings or for certain treatment or services related to their status as a victim. Paid sick leave can now also be used by agricultural employees who work outside if they need to avoid smoke, heat or flooding conditions that are created by a local or state emergency, including when their work sites may be closed because of those conditions. Now, we definitely want employees to understand what are permissible uses of paid sick leave. And the best way to do that is really to have a paid sick leave policy in your employee handbook. That policy will explain to your employees how you're providing paid sick leave. So whether it's on an accrual basis or a lump sum basis, and when and how employees can use it. And don't forget that we also need to make sure that we post the Labor Commissioner's paid sick leave notice in the workplace and also include information about paid sick leave in the notice to employees that we give to all of our non exempt employees at the time of hire. So a number of different ways that we're communicating this information to our employees.

I'm grateful for all that because now it shows. I'm not lying about how complex these rules are. We're just talking about what circumstances you can even use it for and how you even talk to your employees about what they can use it for. So just to kind of clear something up, which is a question that I've gotten on the helpline before in the past, I'm going to go visit my grandmother for her 90th birthday this weekend out of town. I've got some sick leave that's sitting in the bank that I know is going to run out here at the end of the year. And I tell you, Erica, I'm gonna go and I wanna use my California paid sick leave time for just going to visit my grandma. Recreational, pure. I just wanna go see my Grandma, celebrate her 90th birthday and come back home in that circumstance. Then you're telling me that's not really a permissible usage of paid sick leave under the law, right?

That's right. That does not fall into any of the categories that we just went through. And we really shouldn't be allowing employees to use paid sick leave for reasons that are not covered by the law, because then we're just Opening it up for all sorts of other requests about, I wanna use paid sick leave to do this or to limit paid sick leave usage to what's required under the law.

Okay, wonderful. So let's say someone's coming in now and they're telling you, I want to use paid sick leave. I'm sick. Cough, cough. Right? I'm sick. And so they say, I'm out sick. Just. That's all they say to you, Erica, can we then say, okay, well, we know that you're out sick. I'm going to fill in your timesheet with your paid sick leave allotment. In other words, I am requiring your usage for this day that you've called out sick.

No, we cannot require employees to use paid sick leave. And that's because paid sick leave is protected time off, and employees get to decide when and how they're going to use that time. We can ask them, do you want to use your paid sick leave? But we can't require them to use it.

Okay, so then what? We ask them the question, all right, are you going to use this? And they say, no. How do we treat that absence? We know they're out sick and we get kind of afraid of punishing people for being sick. Right. But they're not using what you just called job protected time. So how do we treat that absence?

Well, if they call out and they don't want to use paid sick leave, then their absence is not protected. And that means it can be treated as an unexcused absence. It can be subject to your attendance policy. They can be disciplined for not coming to work when they're scheduled to work. That protection is not there if they're not using paid sick leave.

Okay, and what about other leaves of absence? So anybody who's familiar with cfra, pdl, Pregnancy Disability Leave, fmla, they know that the regulations allow for required sick leave usage when somebody's using it for, say, their own serious health condition. So can we then use that law to require paid sick leave usage during those leaves?

Well, you're right. So each of the leave laws address when and how employers can require the use of paid time, such as sick leave and vacation. But if, even if a leave law allows an employer to require the use of sick leave, generally we should not be requiring the use of this mandatory California paid sick leave that we're talking about right now. And again, that's because California paid sick leave is. It's protected. Employees get to decide when they're going to use it. So we're not going to be requiring them to use it, even though these leave laws may say generally you can require the use of sick leave.

Okay, so let's flip this on the head then. I don't want them to use it. It's inconvenient. Or there may be some other issue around my need to deny their ability to use it. So I call out sick to you, Erica, and you say, you know, I'm sorry about that, but you can't use your California paid sick leave time. Is that okay?

No, it's not. So if an employee has paid sick leave available to use, we need to let them use it. We cannot deny them, can't discourage them from using it. We can't prevent them from using it.

Okay, so I won't prohibit you from using it when you say, I want to use my California paid sick leave time. But we have certain policies, and this often comes up around holidays. Right. You need to work the day before and the day after of your holiday in order to enjoy that holiday pay policy that we provide. Well, if you're calling out sick on the day before or the day after, you're not working those days. So in that circumstance, can I apply my policy? Is there any concerns around that?

Yeah, so there are concerns with that kind of a policy. So you can have a holiday pay policy that has those requirements built into it as long as it carves out paid sick leave or absences due to paid sick leave. So let's say an employee is out the day before or after a holiday because they're using vacation, for example, that's fine. You cannot pay them for the holiday because they were out the day before, the day after. But if they're out because they're using paid sick leave, we can't deny them the holiday pay. Again, this is protected time, and we can't take any adverse action against employees for using it, including not paying them for the holiday.

Okay, so what you just told me in this session that we've just had here is employees have this time. We have to provide to them. And. And if they have a permissible reason for it, they get to choose when and where they use it. And we don't really have any discretion over that as employers. Is that correct?

Pretty much.

All right. Yeah. So I think this is what you and I kind of talk about. This is like sacrosanct time. Like, this is just their time bank. And we'll get into some ramifications of that later here in the show. But really, I think you summed it up great. It's you know, it's their time. If they have the ability to use it, they get to choose to use it. And we can never otherwise dictate how it's used. So then let's get to the king of all issues around paid sick leave, and that is doctor's notes. Because it is their time, we want to make sure they're using it for a permissible reason. They get to choose when they use it. So we want to prevent abuse. Is it permissible for us to ask for doctor's notes when someone says, I want to use their California paid sick leave time?

The answer to that question, Matt, is no, we cannot ask for doctor's notes when employees are using paid sick leave. That's it.

But. Okay, I got that. All right, so I say, I'm gonna use paid sick leave. You're not gonna ask for a doctor's note. What we've seen in practice are a lot of policies that say if you're out for three days, five days in a row, some set number of days in a row, we're gonna ask you for doctor's notes. Are those policies? Okay. How do they work in this context?

Yeah, so we have to be careful with those kinds of policies that are requiring a doctor's note after a certain number of absences, because a blanket policy like that can't apply when an employee is using paid sick leave. So in other words, it couldn't kick in until after has exhausted all of their available paid sick leave. So let's say you're providing the minimum amount of 5 days of paid sick leave per year. Then your blanket policy couldn't apply until after the employee has been out for five days.

Okay, so let's go back to my prior example. I'm going to go visit my grandmother for her 90th birthday. I tell you that as my supervisor, Erica, or as my HR rep that I have, I'm going to take this time off and I'm putting in for California paid sick leave. You now have good reason to believe I'm not using it for a permissible purpose. Or maybe I don't tell you right, but you see on social media that Matt is at a birthday party for his grandma. Big 90th birthday, banners everywhere, balloons, party hats and all the etc. And you say Matt's not really using it for what Erica said as permissible purpose. At that point, can we ask for a note?

Yeah. So this is starting to get a little bit trickier. We do have this general rule that we're not asking for doctor's notes. Now, that being said, the labor commissioner does have an FAQ that addresses this question. And in that faq, the labor commissioner says that, quote, 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, whether requesting a note is permissible, at least according to the labor commissioner, is going to depend on the reasonableness of the party's actions. Now, this is only an faq. It's not law. So I don't, you know, don't want to take that and just run with requiring a note anytime you think that there may be some question about why an employee is using paid sick leave. And it doesn't guarantee that asking for a note in this type of a situation won't violate the law. So really, if you find yourself in a position where you're considering denying the use of paid sick leave or requiring a doctor's note for paid sick leave use because you suspect the employee is, you know, using it for an impermissible purpose, we suggest partnering with legal counsel to assess the risks of doing so.

Yeah, and I think I can put a bow on this, really highlighting the example I've been using. You saw on social media, I'm at a birthday party for my grandma's 90th birthday streamers, and everything's out there. But the real reason I was out there is because she's recovering from a surgery and I'm helping provide care for her. And her 90th birthday just happened to fall on that. And, you know, forbid we ever celebrate our relatives birthdays, even when they're sick. So I think that's why it's really important, as you said, that, you know, don't just go out there on your own and say, look, you're not using this for permissible purpose doctor's note or no paid sick leave. Really consult with legal counsel. I think that's excellent advice. So, Erica, let's end on a very popular topic that we also have, and one that's very practical for a lot of our members and a lot of our listeners out there, employers, a lot of them out there, have single paid time off bank, a time off bank designed to cover vacation and sick leave all in one bucket. Now, can this be compliant with the paid sick leave law that is, are we okay just providing this one bucket to meet that, like five days, 40 hours or one hour every 30 hours work that I talked about at the beginning? And if it is compliant what else should we consider about maintaining such a policy?

Great questions. So employers can comply with the paid sick leave law using a PTO policy. However, doing so can create some issues. And the biggest issue really is that by providing paid sick leave through a PTO plan, your employees can use all of their PTO for paid sick leave purposes, which means that potentially all of the time in their PTO bank can be protected time. So you have to follow all of the requirements that we've been talking about. Now, given that most employers provide more than the five days, more than five days of PTO per year, that means you're creating a bank of protected time that's much larger than it needs to be. In addition, if you're providing paid sick leave through a PTO plan, that's really significantly limiting your ability to manage the use of pto, such as by requiring employees to get approval before doing so. Because as we know, employees get to decide when they're going to use their paid sick leave. So a better practice, really is to have a separate paid sick leave policy. And it can provide just the minimum amount of paid sick leave required by law so that you keep all that protected time in one bank. You can then have a separate vacation policy or even a PTO policy, or an employer provided sick policy that provides additional time that is not protected by the paid sick leave law, it's not subject to all these requirements, and you then have more control over that bank of time.

Thank you so much, Erica, for taking some time to be here with me today to help clear up some of these more common issues that we continue to see with California's paid sick leave law and how to administer that plan compliantly here in California.

Thanks for having me, Matt.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calchamber Dot.