State Offers More Guidance Regarding Paid Sick Leave – Important Questions Remain Unanswered

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10/21/2017

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State Offers More Guidance Regarding Paid Sick Leave –  Important Questions Remain Unanswered

 By: Gregory Blueford

Last week, the Department of Industrial Relations (“DIR”) released an update to their Frequently Asked Questions (“FAQs”) concerning Paid Sick Leave (“PSL”). The full FAQs can be found here.


One interesting FAQ addresses PSL and attendance policies that employers should be aware of. In general, an employer may not discipline an employee for using accrued and/or available PSL. That means if an employee has PSL available to them to use, an employer may not deny the employee the right to use accrued and/or available PSL or discipline an employee for doing so. This right includes the right to use PSL for a partial day (e.g., to attend a doctor’s appointment).


But, wait, there’s more! And it is employer friendly! If an employee does not have any accrued or available PSL (e.g., the employee has used all of their available PSL) and has an unscheduled absence that would otherwise violate the employer’s attendance policy, the employer can discipline the employee for being absent, regardless of whether the employee was actually sick. The PSL law only protects an employee’s accrued and available paid sick leave as provided by law.

In addition, if an employee attempts to use PSL for a reason not covered by the PSL law, the employer does not have to allow the employee to use accrued and/or available PSL for that absence and can discipline the employee if the employee does not show up to work. Under the law, PSL can be used for the following purposes:

        • (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member, and/or;
        • (2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.

Lastly, if an employee uses PSL for an absence and the PSL only partially covers the hours that the employee was gone, the employer is allowed to discipline (or partially discipline) the employee for the unaccounted time. For example, if an employee has only four hours left in their PSL bank and is absent for a full, eight-hour day and uses the four-hours of PSL for that day’s absence, the employee may be disciplined for the four hours of leave that was not covered by the PSL request. Assuming, of course that no other legally available or Company policy or practice covers this absence. Only the four hours (if properly taken under PSL as stated above) is protected from disciplinary action – employers can discipline the employee for the remaining four hours if they choose.

COUNSEL TO MANAGEMENT:

The law requires that employees notify the employer in advance, where possible, of their intention to use PSL. If the need for PSL is unforeseeable, the employee need only give notice “as soon as practicable.” In addition, the law states that an employer is not required to inquire or record the purpose for which an employee uses PSL. While the law itself does not state one way or another whether doctor’s notes are required, the DIR has provided guidance in its “Facts and Resources” guide regarding policies requiring documentation in order to take PSL. The DIR states that an employee “may” bring a PSL claim against an employer who “den[ies] sick leave due to a failure to provide details.”

If your Company has a policy or practice that allows employees to take sick days off after they have exhausted their accrued/available PSL, it must be done on a consistent basis. Allowing some employees to have extra sick time and not others can lead to a discrimination lawsuit. Contact the experts at The Saqui Law Group with any questions you may have about your Company’s PSL policies and practices.

 

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