Neither is Required for Smaller Employers
California does not require employers with payrolls of less than 50 persons to provide workers with sick time, paid or unpaid.
If such an employer does provide paid sick time, a worker has the right to take it as long he or she complies with company rules on the subject. Unlike vacation pay benefits which accrue and are payable on termination if not previously used, business can specify a “use it or lose it” policy on paid sick time, e.g., any portion of entitled sick pay an employee does not utilize in a set period (usually a calendar year) lapses and is no longer available. Typically workplace policies specify new amounts of available paid sick time for each successive annual or other period. It is up to the California employer to decide how much benefit to offer each year or other period.
The application of sick pay policies can involve employee privacy rights. Policies can legitimately require a doctor’s note as a condition for receipt of benefits. However, employers cannot seek information that would require a worker to reveal a disability or serious health condition. See, “Disability and Leave of Absence Policies.”
Employers should regularly review sick leave and sick pay policy statements made in handbooks or elsewhere to ensure they accurately reflect current company procedures and practices.
Qualified workers of California businesses with five or more on payroll have rights to unpaid leave for pregnancy and newborn care under the Pregnancy Disability Law of the Fair Employment and Housing Act (FEHA).
Qualified workers of larger California businesses – with 50 or more on payroll — have rights to unpaid sick leave, including leave to care for an ill child, parent, spouse, domestic partner, or child of a domestic partner under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA).
Whatever a business’s sick pay or sick leave policies, care should be taken to apply them evenhandedly. For instance, a company can face claims for discrimination if it treats workers utilizing (or planning to utilize) the workers’ compensation benefit system more harshly than workers absent for non-work-related illness or injury.
For assistance creating, updating or applying workplace sick leave or sick pay policies, contact an experienced California employment law attorney.