Do I Have a Right to Paid Sick Leave?

With the COVID-19 virus still ravaging our communities, the issue of employment sick leave takes on even greater importance for employees, who face a daily struggle with the virus and other health issues. We previously posted about COVID-19-related employment issues; this post discusses sick leave more generally, but is certainly applicable in our ongoing public health crisis.

When can employees take paid sick leave? How much paid sick leave they you entitled to? Can your employer require a note? Can you be fired for taking sick leave? (No!)

You Have the Right to Paid Sick Leave Under California’s “Healthy Workplaces, Healthy Families” and “Kin Care” Laws

The California legislature has expressed a strong public policy to provide all Californians with a minimum amount of paid sick leave to be used by the employee for their own medical care or that of a family member, which includes diagnosis and preventive care, as well as treatment. Labor Code § 246.5(a)(1).

The California Labor Code requires employers to provide no less than 3 days (or 24 usable hours) of paid sick leave. The employer can provide the sick leave up front or can require that you earn it after working a certain number of hours. Additionally, your employer must allow you to use the sick leave after at least 90 days of work (if not sooner). Many cities require additional sick leave to be provided. For example, in Los Angeles, workers are entitled to 48 hours of sick leave, twice the amount under California law, while workers in Berkeley are entitled to an hour of paid sick leave for each 30 hours worked, up to 48 hours per year (for small employers) or 72 hours (for large employers). 

Unfortunately, sick leave does not need to be paid out at the end of employment and the total amount you can accrue can be capped by your employer, so you may want to use it in the year it is earned.

When Can You Use Sick Leave?

After 90 days of work, you have a nearly unrestricted right to use your accrued sick leave for the purposes discussed above. To utilize paid sick leave, you need only make an oral or written request to your employer to use it. That request usually but does not always have to be before you take sick leave. Rather, you must provide your employer with reasonable notice, which may be provided after your use of sick leave unless the need for leave was foreseeable. If the use is foreseeable, you are obliged to provide reasonable notice before using the sick leave.

Moreover, you have the right to designate paid sick leave under these laws. This means, that if you take approved sick leave, you can request that it be unpaid or paid under the Healthy Workplaces Act at your discretion.

Can Your Employer Require You to Find Coverage To Use Sick Leave?

No. It is illegal for your employer to require you to find a replacement for your shift before letting you use sick leave. Nor can your employer punish you for using sick leave if they cannot find coverage for your shift. An employer who asks you to find alternative coverage may be breaking the law.

Can I Be Fired for Using Sick Leave? 

No. Your employer cannot take any retaliatory action against you for exercising your rights to sick leave. This means they cannot threaten to discharge, demote, suspend, or in any manner discriminate against you for using sick leave to attend to your own or a family member’s illness.

If you need more sick leave than is available under the Kin Care and Paid Sick Leave laws, you may still be protected from retaliation under other laws, but you should talk to an experienced California employment attorney to navigate these overlapping laws.

Talk to an Experienced Employment Lawyer

Every worker in California is entitled to sick leave and no one should be punished for protecting their or their families’ physical well-being. Sick leave retaliation is a social justice issue as it often disproportionately impacts employees of color or limited economic means. We provide free consultations for all clients facing issues with exercising their right to sick leave. Contact our experienced employment lawyers today.

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