January 2nd, 2024
Ann Kuzee
Attorney, TELUS Health (Formerly LifeWorks)

On December 12, 2023, California’s Labor Commissioner (“Agency”) revised its FAQs
(https://www.dir.ca.gov/DLSE/Paid_Sick_Leave.htm) to the Healthy Workplaces Healthy Families Act (HWHFA), California’s Paid Sick and Safe Leave. The revisions were the result of Senate Bill 616 enacted on October 4, 2023, and effective January 1, 2024. While these FAQs do not change the law or regulations, their interpretations of the laws are helpful in understanding how the Agency will be enforcing them.
The key FAQ revisions from the Agency related to the amount of leave an employee can accumulate, carry over, or use effective January 1, 2024, are as follows:

• The amount of paid sick leave per year has increased to at least 40 hours or five days of paid sick leave from 24 hours or three days during a year.
• What ‘40 hours or five days’ means has been explained through two examples:
  • 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.
  • An employer must allow an employee to use at least five days or 40 hours, whichever is more.
• Employees under an accrual policy 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 must earn at least one hour of paid sick leave for each 30 hours of work. 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.
  • While 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.
  • Before January 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.
• 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 3 days or 24 hours must be available for use by the 120th calendar day of employment and 5 days or 40 hours must be available for use by the 200th calendar 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.
• Two new FAQs (i.e., questions 15 and 16) with examples were added to assist employers in navigating the accrual-based or frontloading methods available.
  • Accrual Method: If an employer uses an annual start date other than January 1 and implements a 12-month use cap, that cap must change to 40 hours or 5 days on January 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 January 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.
  • Frontload / “Up-front” Method: The employer has the choice to frontload the two additional days on January 1, 2024, or move the measurement of the yearly period to January 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 January 1, 2024, and keep the May 1 date to frontload or can “reset” the frontload date to January 1, 2024, and provide the employee 5 days or 40 hours then.
• Under the accrual method, an employer may limit or cap the overall amount of sick leave an employee may accrue to 10 days or 80 hours, whichever is more.

To properly manage the changes to California’s Paid Sick and Safe Leave, the FAQs are very much worth reviewing. Among other topics, they answer questions relative to employers who already have paid time off or sick leave policies that meet or exceed the requirements and have employees covered by an existing plan; address changes in the law that extend certain protections to employees covered by a collective bargaining agreement; and explain a partial preemption of local ordinances.

References:

1. State of California Department of Industrial Relations, “California Paid Sick Leave: Frequently Asked Questions” (2023-2024)
2. SB-616 Sick days: paid sick days accrual and use. (2023-2024)
3. AB-1522 Employment: paid sick days (2013-2014). Enacted the Healthy Workplaces, Healthy Families Act of 2014.