FAQs Address Updates to California Sick and Safe Leave

On Dec. 12, California's Labor Commissioner revised its FAQs to address changes that will occur on Jan. 1, 2024, to the Healthy Workplaces Healthy Families Act (HWHFA), the statewide paid sick and safe leave law.

Since amendments made by Senate Bill 616 were enacted on Oct. 4, 2023, employers have anxiously awaited the Labor Commissioner's interpretation of the changes. Although revisions for many FAQs are minor and simply account for the increased amount of leave employees can accumulate, carry over, or use as of Jan. 1, 2024, certain new FAQs provide insight into practical challenges some employers will face, shed light on issues the Labor Commissioner did not address in previous FAQ iterations, and make known the agency's position on its interpretation of amended provisions applicable to companies with employees covered by a collective bargaining agreement (CBA).

Although FAQs do not carry the same legal weight as regulations or the law, they are instructive as to how the agency will approach enforcement.

Year Definition and Documentation

Under the HWHFA, employers can designate any consecutive 12-month period as their year for compliance purposes. Recognizing that Jan. 1, 2024, might be in the middle of an employer's designated year, the Labor Commissioner added two new FAQs addressing actions employers can take, depending on whether they use an accrual-based or frontloading method to comply.

If employees accrue leave, employers must increase the temporary accrual cap on Jan. 1 from 48 hours or six days to 80 hours or 10 days (in both cases, whichever is greater). For employers that frontload leave, the up-front allocation increases from 24 hours or three days to 40 hours or five days (in both cases, whichever is greater). The employer can 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. Regardless of which method an employer uses, if it adopts an annual use cap, on Jan. 1, 2024, that use cap must increase from 24 hours or three days to 40 hours or five days (in both cases, whichever is greater).

Under the HWHFA, "an employer is not obligated to inquire into or record the purposes for which an employee uses paid leave or paid time off." Accordingly, the law does not expressly prohibit employers from requesting that an employee provide documentation to substantiate that their use of paid leave was for a qualifying purpose. Many local laws expressly permit such requests (e.g., Berkeley, Los Angeles, Oakland, San Diego, and San Francisco).

The state Labor Commissioner confirmed an employer may not deny an employee paid sick leave based solely on a lack of certification from a health care provider. An employee is entitled to take paid sick leave immediately upon the covered employee's oral or written request. The leave is not conditioned on medical certification.

It may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has information indicating that the employee is not requesting paid sick leave for a valid purpose. In any such instance, the reasonableness of the parties' actions will inform the outcome of the claim.

Employees Covered by Collective Bargaining Agreement

Before the new amendment, the HWHFA contained two CBA-related exceptions: one inside the construction industry and another outside it. The new amendment changed the outside provision so that, generally, these employees were exempt from the law's requirements, if the CBA satisfied certain requirements. 

However, effective Jan. 1, 2024, the law will apply to these workeres in three specific ways: 1) they can use paid leave for themselves or family members for the same reasons under the HWHFA; 2) they cannot be required to find a replacement worker to cover their shift when they use paid leave; and 3) they cannot be denied the ability use paid leave, or be retaliated or discriminated against for attempting to or using paid leave, filing a complaint, cooperating in an investigation of an alleged violation, or opposing an unlawful policy.

According to the revised FAQ, employees partially exempt from paid sick leave include employees outside the construction industry covered by a CBA with specified provisions. However, these workers are still entitled to some paid sick leave under their CBA. As of Jan. 1, 2024, these employees must be allowed to take sick leave for all the purposes specified in the paid sick leave law and cannot be required to find a replacement as a condition for taking paid sick leave. These employees are also protected by the law's anti-retaliation provisions.

For example, if an employee covered by a qualifying CBA is denied paid sick leave because they could not find a replacement worker, the employer would be in violation of California's paid sick leave law, and the employee could seek remedies for these violations by filing a claim with the Labor Commissioner's Office.

The limited discussion of this change's impact still leaves employers with CBA-covered employees with questions. For example, it is unclear how to harmonize an employee's ability to immediately file a complaint with the Labor Commissioner while the HWHFA requires the at-issue CBA to provide for "final and binding arbitration of disputes concerning the application of its paid sick days provisions."

Next Steps

With fewer than three weeks remaining before the new amendments take effect on Jan. 1, 2024, these FAQs may prompt some employers to quickly review and revise their paid sick and safe leave policies and procedures. For others, however, the FAQs may simply offer reassurance that their operations or approach to compliance is on solid footing. Whether you're panicked or prepared, one thing is certain – next year's plan must incorporate the HWHFA changes.

Sebastian Chilco, Michelle Barrett Falconer, and Adam Fiss are attorneys with Littler. © 2023. All rights reserved. Reprinted with permission.