CA Provides Guidance on Expanded Sick Leave Law; Requires Reproductive Loss Leave

The California Department of Industrial Relations has updated guidance to address the expansion of the state’s paid sick leave law that takes effect January 1, 2024.

The Details

Background

Effective January 1, 2024, changes to the state’s paid sick leave law include but aren’t limited to:

Employees have the right to use up to 5 days or 40 hours of paid sick leave per year (up from 3 days or 24 hours).
While employers are generally required to carryover accrued, unused leave to the following year, no carryover is required if the full amount of leave is received at the beginning of each year (also known as the “up-front method” or “frontloading”). “Full amount of leave” for these purposes is defined as 5 days or 40 hours (up from 3 days or 24 hours).
An employer is under no obligation to allow an employee’s total accrual of paid sick leave to exceed 10 days or 80 hours (up from 6 days or 48 hours), provided that an employee’s rights to accrue and use paid sick leave are not otherwise limited.
Certain provisions will preempt any local ordinance to the contrary.

Updated Guidance

The California Department of Industrial Relations has updated its answers to frequently asked questions about the state’s paid sick leave to address the changes for 2024. Here are some examples.

Q: What does 5 days or 40 hours mean?

A: Starting on January 1, 2024, an employer must allow an employee to use at least five days or 40 hours, whichever is more (refer to DLSE Opinion Letter 2015.08.07).

Therefore, for example, if an employee works 10‑hour days, the employee will be entitled to use at a minimum 50 hours of paid sick leave.

Alternatively, if an employee works only 6 hours a day and takes five days of paid sick leave, for a total of 30 hours, the employee will still have 10 hours remaining.

These examples assume the employee has earned or received upfront their full amount of leave.

Q: What if a local ordinance requires an employer to provide more paid sick leave than state law?

A: The employer must provide the paid sick leave required by the local ordinance if it is more than the requirements of state law.

In general, if employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee.

The only exception to this general rule is that as of January 1, 2024, local ordinances cannot contradict the state paid sick leave law requirements regarding the lending of paid sick leave, paystub statements, calculation of paid sick leave, providing notice if the leave is foreseeable, timing of payment of paid sick leave, and whether payment of sick leave is required upon termination. If a local ordinance contradicts the state law on these specific topics, the state law prevails over (preempts) the local law.

Q: What options do employers have to provide paid sick leave?

A: Employers may choose to have an “accrual” policy or an “up front” policy.

Q: What is an accrual policy?

A: An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule). Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment and 40 hours by the 200th calendar day of employment.

Although employees may accrue more than five days of paid sick leave under the one hour for every 30 hours worked accrual method (or under an alternative accrual standard), the law allows employers to limit an employee’s use of paid sick leave to 40 hours or five days during a year. The law also allows an employer to limit an employee’s total accrued paid sick leave to no more than 80 hours or ten days. Prior to January 1, 2024, an employer could limit an employee’s use to 24 hours or three days during a year and an employee’s accrual to no more than 48 hours or six days.

Q: What is an up‑front policy for providing paid sick leave?

A: An up-front policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment. The employer must provide at least 40 hours or five days of paid sick leave per year and the full amount of this leave must be available for the employee’s use from the beginning of each year of employment, calendar year, or 12-month period.

Q: If an employer uses an accrual method and capped an employee’s yearly use of leave at 3 days or 24 hours, what must an employer do to comply with the law on January 1, 2024?

A: If an employer uses an annual start date other than January 1 and implements a 12‑month use cap, that cap must change to 40 hours or 5 days on January 1, 2024. For example, if an employer uses the 12-month period of May 1 - April 30 and implements a cap, and an employee used 24 hours or three days before January 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.

Q: If an employer utilized the “up-front” method prior to January 1, 2024 and provided an employee with 3 days or 24 hours of leave on the employee’s anniversary date during the year, what must an employer do to comply with the law on January 1, 2024?

A: The employer has the choice to frontload the two additional days on January 1, 2024 or move the measurement of the yearly period to January 1, 2024 and frontload five days. For example, if an employee started on May 1, 2021, and the employer used that anniversary date to frontload 3 days or 24 hours on May 1, 2023, the employer may either provide 2 days or 16 hours on January 1, 2024, and keep the May 1 date to frontload or can “reset” the frontload date to January 1, 2024 and provide the employee 5 days or 40 hours then.

Next Steps

Read the updated guidance in full.
Comply with the changes to the state’s paid sick leave by January 1, 2024.
Post an updated paid sick leave notice.
As required by the state’s wage theft notice requirements, notify employees of the paid sick leave changes within seven days of January 1st and provide updated wage theft notices to new hires.

California has enacted legislation that requires employers with 5 or more employees to provide time off to employees who experience a covered reproductive loss event. The requirement takes effect January 1, 2024 and is separate and distinct from the state’s bereavement leave and other leave requirements.

The Details

General Requirements

Under the law, covered employers must grant a request by any covered employee to take up to five days of reproductive loss leave following a covered reproductive loss event.

With one limited exception, the leave must be taken within 3 months of the event. However, if the employee is on or chooses to go on a different type of leave to which they are entitled under state/federal law, the reproductive loss leave must be completed within 3 months of the end of that other leave. Employees are entitled to use the leave on consecutive or nonconsecutive days.

If an employee experiences more reproductive loss events within the 12-month period, they are entitled to additional allotments of leave for each instance. However, an employer is only required to grant an employee up to 20 days of such leave within a 12-month period.

Covered Employees

To be eligible for such leave, an employee must be employed by the employer for at least 30 days prior to the start of the leave.

Covered Events

The leave may be taken after a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction, provided the employee would have been a parent if the covered event were successful. See the text of the law for definitions of these events.

Pay During Leave

The leave must be taken pursuant to any existing applicable leave policy of the employer. If there is no existing applicable leave policy, reproductive loss leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Documentation

Nothing in the law requires employees to provide documentation to be entitled to such leave.

Retaliation Prohibited

Employers are prohibited from taking adverse action against an individual because they:

Exercise the right to reproductive loss leave.
Give information or testimony as to their own reproductive loss leave, or another person’s reproductive loss leave, in an inquiry or proceeding related to rights guaranteed under the law.

Next Steps

If you are a covered employer,

Review policies and practices to ensure compliance with the changes made by the law by January 1, 2024.
Train supervisors on the changes and how to respond to leave requests.

Note: A Reproductive Loss Leave policy for California employers will be added to the Employee Handbook Wizard in RUN Powered by ADP® to address the requirement.

Compliance Update