The Labor Commissioner’s Office recently updated its frequently asked questions about California paid sick leave (PSL).
The updated FAQ addresses three areas where employers have often had questions:
- Whether an employer must provide additional paid sick days if it had already had a paid time off (PTO) plan before the mandatory paid sick leave law went into effect in 2015 (grandfathered plan);
- How employers with a grandfathered PTO plan should pay employees for time that is taken off for purposes other than paid sick leave, such as a vacation or personal holiday; and
- The interaction between the use of paid sick leave and employer discipline and attendance policies, including point systems.
On this final question, it is important to point out that the Labor Commissioner distinguishes between absences that happen when the employee has accrued and available paid sick leave time in his/her leave bank (protected absences) and absences that happen when the employee does not have any accrued and available paid sick leave. According to the FAQ, the “paid sick leave law does not ‘protect’ all time off taken by an employee for illness or related purposes; it ‘protects’ only an employee’s accrued and available paid sick leave as specified in the statute.”
If the employee does have PSL in his/her bank that is available for use, employers should not discipline the employee for using that time for a permitted purpose and should not count such absences as a violation of an attendance policy.
Although not addressed in the FAQ, employers should still exercise caution before disciplining for an absence that is related to illness and consider whether the absence is protected under another law such as the Family and Medical Leave Act, the California Family Rights Act, the Americans with Disabilities Act or the Fair Employment and Housing Act.
Employers are encouraged to review these FAQ as they provide guidance on how the Labor Commissioner will enforce the law.