Nothing in California is easy for employers, and California’s new paid sick leave statute (AB 1522) is no exception.
Here is the first challenge. While employers can make employees give notice of paid sick time when foreseeable, they can’t really punish employees who take time off that is not foreseeable, because the statute prevents retaliation against any employee for using sick leave (or even requesting to use it). Employers are also prohibited from requiring employees to find a replacement worker to cover time off.
So, imagine this. Employee is due in at 9 am. Employee wakes up to a suddenly sick child at 7:15 am (not foreseeable). The employer’s policy requires a 2-hour minimum call out for a missed shift. However, the employee misses that window and calls at 8 am (or maybe even at 9 am when expected at work). The employee has not found a replacement to cover the shift. Now what? Can the employee be disciplined for failing to use the employer’s call out procedure? For not finding a replacement? Unfortunately, the answer is very likely – no. The employer is stuck with an absent employee, no one to cover, and no one to hold accountable.
Here is a second challenge. Sick pay is paid at the employee’s hourly wage. That’s easy, right? Think again. If the employee has different hourly pay rates or is paid commission in the 90 days before the sick leave is taken, then the rate will fluctuate. In fact, the rate for each paid sick day (or hour) must be calculated by dividing the employee’s total wages (not including premium pay), by the employee’s total hours worked in the full pay periods of the prior 90 days.
So, imagine a retail sales clerk who earns commission, or a hotel steward who also covers as a houseman at a different pay rate, or a server who earns a service charge for banquet functions – the appropriate sick pay rate for each of these employees will need to be calculated each time they use sick leave. Oh, and by the way, sick leave can be used in increments as small as two hours.
At this point, California employers (and those advisors trying to guide them) will need more than aspirin!