Q: I AM a part-time hourly employee working in retail. I work between 20 to 30 hours a week. I recently got sick and had to be out for three days. I was told that I was not entitled to paid sick leave because I was a part-time employee. Is this right?
A: No, you are entitled to paid sick leave. In California, an employee working for 30 or more calendar days within a year is entitled to paid sick leave. This applies to full-time employees, as well as temporary, part-time, and seasonal employees. The law also provides paid sick leave to both non-exempt (hourly) and exempt (salaried) employees. Employees may begin using accrued sick leave on the 90th calendar day of employment.
Employees may use paid sick leave for the diagnosis or treatment of a health condition or for preventive care for themselves or to care for a sick family member, such as a child, parent (including parent-in-law), spouse, registered domestic partner, grandparent, grandchild or sibling. Employees who are victims of domestic violence, sexual assault, or stalking may also avail of paid sick leave for specified purposes.
How do employees earn sick leave? Employees become entitled to one hour of paid sick leave for every 30 hours worked. This is the accrual method of earning sick leave. Thus, an employee who works 40 hours per week accrues 1.33 hours per week of paid sick leave. Accrued paid sick leave must carry over to the following year and may be capped at 48 hours (or 6 days). An employee who is exempt from overtime requirements, and does not have a normal workweek, is deemed to work 40 hours per workweek. The employer may lend paid sick days to an employee before the employee has earned them.
Alternatively, instead of having employees earn the sick leave, employers can provide 24 hours or 3 days of paid sick leave at the beginning of each calendar year, anniversary date or twelve months basis. This is called the up-front method. If this method is used, then the employer will not need to track accrual but will still need to track and display usage of sick leave on the employee’s pay stub. Also, if this method is used, the employer is not required to provide for carry-over of unused sick leave.
How much should employers pay for sick leave? Employers must pay sick leave at the employee’s current hourly rate of pay. For employees who are paid by commission or piece rate, their hourly rate is derived by dividing their total compensation for the previous 90 calendar days by the number of hours worked. Payment for used sick leave should be no later than the payday for the next regular payroll period after the sick leave was taken.
If the need for paid sick leave is foreseeable, the employee should provide reasonable advance notice to the employer. If the need for paid sick leave is unforeseeable, the employee should provide notice of the need for the leave as soon as possible. However, employees should not be denied payment for sick leave simply because the employees failed to provide prior notice for an unforeseen illness or that the employees did not provide details of their condition. Employees also cannot be required to find a replacement to cover their scheduled shift before they can be granted paid sick leave.
All employers, big and small, must provide paid sick leave to its employees. The protection to employees is so important that employers cannot retaliate or discriminate against those who use paid sick leave. Hence, any type of sanction against the employee for availing of paid sick leave, including termination, may be actionable against the employer.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]