The California Department of Industrial Relations has updated guidance to address the expansion of the state’s paid sick leave law that takes effect Jan. 1, 2024.
The details
Background
Effective Jan. 1, 2024, changes to the state’s paid sick leave law include but aren’t limited to:
- Employees have the right to use up to 5 days or 40 hours of paid sick leave per year (up from 3 days or 24 hours).
- While employers are generally required to carryover accrued, unused leave to the following year, no carryover is required if the full amount of leave is received at the beginning of each year (also known as the “up-front method” or “frontloading”). “Full amount of leave” for these purposes is defined as 5 days or 40 hours (up from 3 days or 24 hours).
- An employer is under no obligation to allow an employee’s total accrual of paid sick leave to exceed 10 days or 80 hours (up from 6 days or 48 hours), provided that an employee’s rights to accrue and use paid sick leave are not otherwise limited.
- Certain provisions will preempt any local ordinance to the contrary.
Updated guidance
The California Department of Industrial Relations has updated its answers to frequently asked questions about the state’s paid sick leave to address the changes for 2024. Here are some examples.
Q: What does 5 days or 40 hours mean?
A: Starting on Jan. 1, 2024, an employer must allow an employee to use at least five days or 40 hours, whichever is more (refer to DLSE Opinion Letter 2015.08.07).
Therefore, for example, if an employee works 10‑hour days, the employee will be entitled to use at a minimum 50 hours of paid sick leave.
Alternatively, if an employee works only 6 hours a day and takes five days of paid sick leave, for a total of 30 hours, the employee will still have 10 hours remaining.
These examples assume the employee has earned or received upfront their full amount of leave.
Q: What if a local ordinance requires an employer to provide more paid sick leave than state law?
A: The employer must provide the paid sick leave required by the local ordinance if it is more than the requirements of state law.
In general, if employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee.
The only exception to this general rule is that as of Jan. 1, 2024, local ordinances cannot contradict the state paid sick leave law requirements regarding the lending of paid sick leave, paystub statements, calculation of paid sick leave, providing notice if the leave is foreseeable, timing of payment of paid sick leave, and whether payment of sick leave is required upon termination. If a local ordinance contradicts the state law on these specific topics, the state law prevails over (preempts) the local law.
Q: What options do employers have to provide paid sick leave?
A: Employers may choose to have an “accrual” policy or an “up front” policy.
Q: What is an accrual policy?
A: An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule). Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment and 40 hours by the 200th calendar day of employment.
Although employees may accrue more than five days of paid sick leave under the one hour for every 30 hours worked accrual method (or under an alternative accrual standard), the law allows employers to limit an employee’s use of paid sick leave to 40 hours or five days during a year. The law also allows an employer to limit an employee’s total accrued paid sick leave to no more than 80 hours or ten days. Prior to Jan. 1, 2024, an employer could limit an employee’s use to 24 hours or three days during a year and an employee’s accrual to no more than 48 hours or six days.
Q: What is an up‑front policy for providing paid sick leave?
A: An up-front policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment. The employer must provide at least 40 hours or five days of paid sick leave per year and the full amount of this leave must be available for the employee’s use from the beginning of each year of employment, calendar year, or 12-month period.
Q: If an employer uses an accrual method and capped an employee’s yearly use of leave at 3 days or 24 hours, what must an employer do to comply with the law on Jan. 1, 2024?
A: If an employer uses an annual start date other than Jan. 1 and implements a 12‑month use cap, that cap must change to 40 hours or 5 days on Jan. 1, 2024. For example, if an employer uses the 12-month period of May 1 - April 30 and implements a cap, and an employee used 24 hours or three days before Jan. 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.
Q: If an employer utilized the “up-front” method prior to Jan. 1, 2024 and provided an employee with 3 days or 24 hours of leave on the employee’s anniversary date during the year, what must an employer do to comply with the law on Jan. 1, 2024?
A: The employer has the choice to frontload the two additional days on Jan. 1, 2024, or move the measurement of the yearly period to Jan. 1, 2024, and frontload five days. For example, if an employee started on May 1, 2021, and the employer used that anniversary date to frontload 3 days or 24 hours on May 1, 2023, the employer may either provide 2 days or 16 hours on Jan. 1, 2024, and keep the May 1 date to frontload or can “reset” the frontload date to Jan. 1, 2024 and provide the employee 5 days or 40 hours then.
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