by Robert Wenzel
One of the more difficult challenges facing employers is when a sick worker needs to take time off. While having an employee miss work can lead to an increased workload for other individuals, oftentimes businesses may not have a policy in place that addresses sick time.
Recently enacted California legislation requires all companies, regardless of the number of employees, to offer a minimum of 24 hours of sick time to employees effective July 1, 2015. The law applies to all workers who work more than 30 days within a calendar year for the organization, whether they are seasonal, temporary, part-time or out-of-state employees who work within the state for the 30 day time frame.
The only workers who are exempted from accruing sick time are workers who are represented by a union and are covered by a collective bargaining agreement that includes a stipulation for sick time; construction employees who have a valid collective bargaining agreement; individuals who provide in-home supportive services; and persons who work in an airplane flight deck or cabin crew members who receive time off that is equivalent to what is permitted in the new law.
When the law takes effect later this calendar year, sick time will accrue at no less than one hour for every 30 hours worked. The accrual rate will start after 90 days of employment or effective July 1, whichever date comes later.
After the 90 day mark, an individual can start to take their sick time. If they are short hours, the company has the discretion of advancing time to an employee.
When a worker does use a sick day, the law states that an hourly worker is to be paid at their normal rate of pay. If the person is a salaried or variable hourly wage employee, then the rate of pay should be calculated by dividing the individual’s wages by the number of hours worked in the previous 90 days. At the same time, an employee needs to be paid for a sick day no later than the payday for the next payroll period after the sick day was taken.
In addition, unused and accrued sick time must be carried over into the next calendar year. The maximum that can roll over is 48 hours. However, the time does not carry over if the employee is given their 24 hours at the beginning of the year.
Furthermore, businesses need to be careful as to how they keep track of sick hours. The organization must keep records for at least three (3) years that document the hours worked, the paid sick days used and accrued by each worker, and make sure the records are available for each individual upon request.
At the same time, the company needs to give every person notice in writing that shows the number of available sick hours either on a wage statement (such as a paystub) or in another method of writing on each payday. The business is also required to display a poster that explains the rights of a worker under this new law. Furthermore, upon hire new employees are to receive written notice of their rights as it pertains to the legislation.
However, the rules concerning the new law are different if a business already has an established policy concerning sick time or Personal Time Off (often referred to as PTO). If the organization already provides an individual with sick time that meets the basic requirements of the new law, then the company is not required to provide any additional hours to the person. The employer must still provide written statements showing sick hours and have the required poster on display.
When an employee leaves the company, the business is not required to pay the individual for any accrued, unused sick days. If the worker leaves the organization and returns to the business within one year, then any unused sick days must be reinstated for the individual.
An additional aspect of the new legislation is that an employer cannot deny an employee from using any accrued sick time. At the same time, a business is prohibited from taking adverse action against a worker for taking one of their sick days. This includes but is not limited to termination, suspending, and/or demoting an individual.
With the July 1 implementation date rapidly approaching, companies need to ensure that they are in compliance with the new law. If an employer does not have a policy currently in place, they should determine what policy works best for them. For example, it may be more beneficial for an organization to give the required number of sick days to their employees at the beginning of the year.
In addition, businesses that already allow for sick time need to review their policy to ensure that it meets all of the guidelines. Failure to do so could lead to a company violating the law, a potential fine and/or a lawsuit.
Lastly, the employer needs to ensure that they are properly communicating with their workers regarding available sick time. At the very least, the organization has to provide a written record of the accrued sick hours and post the employee’s rights. Furthermore, the company may want to discuss the new law ahead of time with their workers so that both sides are aware of the law. This can also allow for individuals to ask any questions that they may have regarding their rights.
It can benefit an organization to meet with a business attorney before the new sick time law goes into effect. A lawyer can make the company aware of any potential issues and if the employer is meeting all of their legal obligations. At the same time, an attorney would be able to evaluate and offer suggestions to improve the company’s policy.