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More Local Paid Sick Leave Ordinances

 

Over the last few years, several cities and counties in California have passed ordinances requiring paid time off or paid sick leave for employees.  California employers are still trying to figure out how to comply with California’s paid sick leave law (aka: Healthy Workplace Healthy Family Act).  Santa Monica, Los Angeles, San Diego, and Long Beach have added their own sick leave ordinances, and San Francisco has amended its sick leave ordinance, making it that much more difficult for employers to comply with the sometimes contradicting requirements.  Below are brief highlights the new/amended local ordinances.

Amended San Francisco Paid Sick Leave

Effective January 1, 2017, San Francisco’s paid sick leave law is amended in an attempt to better align its provisions with California’s paid sick leave law. The amendments provide that San Francisco’s sick leave begins to accrue upon the commencement of employment, but employers may limit usage until after 90 days of employment.  The amendments allow employers to “advance” the sick leave at the beginning of the year instead of permitting employees to accrue the time. This is treated as an advance, temporarily halting accrual until after working the number of hours necessary to have accrued the advanced amount, at which point accrual resumes.  However, unlike the grant method under California’s paid sick leave law, employers  still have to allow employees to carry over unused sick time to the following year.  I suspect this will continue to cause problems for San Francisco employers, and doesn’t really address the accrual versus one-time grant problem.

The amendments also change to the definition of “family members” for whom time may be used, expands the permitted uses to include preventative care and time for purposes related to domestic violence, sexual assault, and stalking suffered by the employee, clarifies how and when sick leave must be paid, requires written notice to employees regarding available balances of paid sick leave, and, like California’s law, requires reinstatement of unused sick leave if an employee is rehired within one year of separation.

San Francisco is usually pretty good about providing FAQ’s about their ordinances, so I suspect the city will publish material to help guide employers in the near future.

Los Angeles Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in the City of Los Angeles

Effective date: Businesses must comply with the sick leave requirements starting July 1, 2016

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers may implement an accrual cap of 72 hours of accrued paid sick leave.  Accrued time must be carried over from year to year

Usage cap: Employees must be permitted to use up to 48 hours of accrued sick leave each year

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

Leave to care for others: In addition to the persons identified in the California sick leave law for whose care employees can use sick leave, the ordinance permits employees to use sick leave to care “for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”

Santa Monica Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in Santa Monica

Effective date: Businesses must comply with the sick leave requirements starting January 1, 2017

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers with 26 or more employees shall provide at least 40 hours of paid sick leave as of January 1, 2017 (note, however, that the California law requires employees be permitted to accrue up to 48 hours) and at least 72 hours of paid sick leave as of January 1, 2018

Employers with 25 or fewer employees shall provide at least 32 hours of accrued paid sick leave as of January 1, 2017 and at least 40 hours of accrued paid sick leave as of January 1, 2018 (remember: California law requires employees be permitted to accrue up to 48 hours)

Accrued time must be carried over from year to year

Usage cap: Unlike the California sick leave law, the ordinance does not permit a usage cap

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

San Diego Paid Sick Leave

Covered employees: Employees who, in one or more calendar weeks of the year, performs at least two hours of work in the City of San Diego

Effective date: The voters of San Diego approved the paid sick leave ordinance on June 7, 2016.  Under San Diego election laws, the law will take effect on the date the City Council adopts a resolution declaring the result of the election.  It is assumed this will occur sometime in July

Accrual rate: The ordinance provides that earned sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of earned sick leave for every 30 hours worked within the geographic boundaries of the City of San Diego

Accrual cap: Employers may not implement an accrual cap; employees must be permitted to continue to accrue earned sick leave.  Accrued time must be carried over from year to year

Usage cap: Employers may limit usage of earned sick leave to 40 hours per year

One-Time Grant: The law does not expressly provide for a grant of earned sick leave

Usage: Employers may prohibit employees from using any accrued earned sick leave until after the first 90 days of employment

So far, Oakland and Emeryville have not changed their paid sick leave ordinances. None of the local ordinances require employers to pay out unused paid sick leave upon termination. However, if an employer allows employees to use paid sick leave for purposes other than sick leave, the employer could turn the paid sick leave into a paid time off policy which would have to be paid out at the end of the employment.

California employers with employees working in any of the cities above should review their paid sick leave f policies to evaluate whether they comply with both the state and municipal sick leave ordinances.  Businesses with employees in multiple cities should either adopt a different policy for employees in certain cities or create a single policy complies with whichever municipality is the strictest.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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Pregnancy-Related Leave of Absence

FAQ’s Regarding Pregnancy Related Leave of Absence

California’s Pregnancy Disability Leave Act (PDLA) affords pregnant employees the opportunity to take a pregnancy related leave of absence for pregnancy-related disability leaves.  California law protects employees against discrimination or harassment because of an employee’s pregnancy, childbirth or any related medical condition (referred to below as “because of pregnancy”). California also law prohibits employers from denying or interfering with an employee’s pregnancy-related employment rights.

With few exceptions, employers must guarantee the employee’s position for up to 4 months while the employee is disabled as a result of pregnancy.  If the employer has 50 or more employees within a 75-mile radius of the employee, the employer may be required to grant the employee an additional 12 weeks of unpaid time off to bond with the newborn child.  Although pregnancy disability leave is usually unpaid, employees may be eligible for state disability benefits.  Employees may also be eligible for up to 6 weeks of state disability benefits while the employee bonds with the child under California’s Paid Family Leave.

Employers and employees do not always understand their pregnancy leave rights and obligations.  The following answers some of the most common questions employees and employers have regarding California’s pregnancy disability leave law.

Does every employer have to provide pregnancy disability leave?

California’s PDLA is part of the Fair Employment and Housing Act.  Therefore, any business with 5 or more employees is required to comply with the PDLA and provide pregnancy disability leave.

Does the company have to publish or post its PDLA policy?

The PDLA requires employers to publish its PDLA policy in the employee handbook if the employer has a handbook. The PDLA also requires employers to post its PDLA policies in a place where employees can view the poster. The DFEH has created a sample poster employers can use.  There are two versions of the standard DFEH poster, depending on whether the employer has more than 50 employees working within a 75-mile radius.  The poster is typically included with the multi-law poster employers purchase.

The poster, and any PDLA policies, should explain the employee’s leave entitlement rights and obligations, when an employee is entitled to PDLA leave, and what happens to an employee’s benefits while on PDLA leave.

Once an employee notifies the employer that the employee requires time off work due to a pregnancy-related disability, the employer must guarantee in writing that the employee can return to work in the employee’s same position if the employee requests a written guarantee.

What happens to an employee’s health insurance benefits while the employee is on PDLA leave?

Employers are required to continue employee group health coverage during your PDL at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the PDLA leave.  If an employer normally pays 100% of the medical insurance coverage, then the employer must continue to pay 100% of the medical insurance coverage while the employee is on PDLA leave.  If the employee is responsible for a portion of the medical insurance premiums, then the employee will need to make arrangements to continue to pay her portion of the medical insurance premiums while on the PDLA leave.  If an employee fails to pay her portion of the health insurance premiums while on PDLA, the employer may cease making its payments and offer the employee the opportunity to continue coverage through COBRA.

How much leave is an employee entitled to take under the PDLA?

Employees may take “up to” 4 months of unpaid time off while the employee is disabled as a result of pregnancy.  Once the employee is no longer disabled as a result of pregnancy, the employee must return to work even if the employee has not exhausted the full 4 months of leave.

What if the has exhausted her leave before her doctor releases her to return to work?

Although the PDLA only requires the employer to provide up to 4 months of unpaid leave under the PDLA, if the employee’s medical condition qualifies as a “disability” under state or federal disability discrimination laws the employer may be required to provide additional time off work as a reasonable accommodation for the disability.  For example, some courts have held that post-partum depression is a disability, and employers may be required to provide additional time off work as an accommodation for the disability.

Does PDLA leave have to be taken all at once?

No.  PDLA leave may be taken on an as-needed basis as required by your health care provider, including intermittent leave or a reduced work schedule, all of which counts against your four month entitlement to leave.

What if the employee does not need to take time off work, but requires other accommodations?

The PDLA requires employers to reasonably accommodate medical needs related to pregnancy, childbirth or related conditions.  Some common accommodations include temporarily modifying work duties, providing a stool or chair, allowing more frequent breaks, transferring the employee to a less strenuous or hazardous position (where one is available).  The accommodations are required if medically needed because of the pregnancy, and should be supported by a note from the employee’s health care professional.

Does the PDLA allow an employee to take time off work to bond with the newborn?

No.  Although California employees may be eligible for up to 6 weeks of Paid Family Leave, PFL is not a protected leave.  If the employer has more than 50 employees within a 75-mile radius of the employee, the California Family Rights Act requires the employer to provide up to 12 weeks of unpaid family bonding leave.  So, if the CFRA applies, the employee could take 4 months of unpaid leave under the PDLA while she is disabled as a result of pregnancy, and then take an additional 12 weeks of unpaid family bonding leave under the CFRA.  Depending on whether the employee has any other disabilities, the employer may be required to provide additional time off determined on a case-by-case basis.

What kind of notice should an employee provide prior to taking PDLA leave?

When the need for the leave is foreseeable, the employee should provide at least 30 days’ notice prior to taking the leave.  When the need for the leave is not foreseeable, the employee should notify the employer of the need for the leave as soon as the need becomes known.

What kind of medical documentation is necessary in order to substantiate a pregnancy-related disability leave of absence?

Except in the case of a medical emergency, employers may require written medical certification from a health care provider substantiating the need for the leave before approving the leave.  The medical documentation only needs to provide sufficient information for the employer to determine that the leave of absence is for a pregnancy-related disability, and they type or amount of leave required (e.g., intermittent, estimated length of time, etc.).   The employer must provide at least 15 days for the employee to submit the medical certification.   The employer may also require a certification that you are able to return to work, with or without reasonable accommodations, after you are no longer disabled as a result of the pregnancy.

Are fathers entitled to time off under the PDLA?

No.  The PDLA only applies to employees who are disabled as a result of pregnancy.  Depending on the size of the employer, fathers may be entitled to time off under either the federal Family Medical Leave Act or the California Family Rights Act to help care for the mother of their child or to bond with the child.

Are employers required to provide any accommodations after the child is born?

Yes.  Employers are required to provide a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private.

Can the employer require an employee to use accrued paid sick leave for PDLA leave?

Yes.  An employer can require an employee to use accrued paid sick leave.  The employee can choose to use accrued vacation or other paid time off.

The company is about to go through a layoff.  If the employee takes PDLA leave, can the employer still proceed with the layoff?

Yes.  An employee on PDLA is entitled to the same rights and benefits the employee would have received had the employee not taken the leave of absence.  If the employer can establish that the employee would have been laid off regardless of the PDLA leave, there is no violation of the law.