It is rare that an individual will go an entire year without getting sick, and whether we like it or not, chances are that if we fall ill, it will be on a workday. This is an irrefutable fact of life that not even the strictest of employers can argue with, which is why most employers provide an allotted number of sick days to full-time employees without risk of negative consequences or retaliation. It is also why California became the second state in the nation to require all employers—regardless of size—to provide paid sick time off (Assembly Bill No. 1522, Chapter 37; Healthy Workplaces, Healthy Families Act of 2014).

California’s Healthy Workplace, Healthy Families Act of 2014

California passed the Healthy Workplace, Healthy Families Act of 2014 for several reasons, the most urgent of which include:

  • Nearly every employee in the State of California will fall ill at least once during the year and will need some time off to recover;
  • Many California employees do not have any paid sick days, or have an inadequate number of sick days;
  • Low-income workers are less likely to receive any sick days, much less paid sick leave;
  • Providing employees with paid sick leave will create a more productive workforce in California;
  • Providing employees with paid sick leave will have a positive impact on California’s overall health; and
  • Providing employees with paid sick leave enables parents to care for their sick children, and to ensure their speedy recovery and the prevention of more serious illnesses.

For the full list of reasons why the State of California enacted AB 1522, view the bill’s entire text at California Legislative Information.

AB 1522 states, in a nutshell, that California employees who work at least 30 days out of the year are entitled to paid sick leave, and that they can begin using their paid sick leave after working for 90 days with the same company. Accrual for paid sick time works as follows: for every 30 hours that an employee works, they gain one hour of sick pay. An employer can put a cap on how much paid sick time an employee can accrue at 48 hours, or six days. However, while an employee can accrue up to six days of paid sick leave, an employer can limit the amount of paid sick leave used to just 24 hours, or three days, per year.

Employees are entitled to use sick leave for the diagnosis, preventative care, or treatment of an existing ailment or the existing ailment of a family member. Family member includes a child, parent, grandparent, spouse, domestic partner, sibling, parent-in-law, or grandchild.

While California’s paid sick leave policy is a great, forward-thinking approach to improved and healthier workplace environments throughout the state, it has posed some problems for California employers—especially those who previously thought that unlimited sick days were a good idea.

Abuse of Paid Sick Leave

Unfortunately, some individuals tend to take advantage of their company’s sick leave policy, especially if their company has a generous one. An employer may notice that a certain employee takes every third Friday of the month off, and that the same employee calls in sick on every major three-day holiday weekend. They may catch wind that an employee who called in sick in the morning is out surfing with his friends in the afternoon. Or they may start to catch on when Bob from accounting happens to fall ill whenever his favorite sports team is scheduled to play at home.

When employees begin to take advantage of a company’s sick leave policy, an employer’s first reaction may be to enforce some sort of punishment, such as suspension, dock in pay, or even termination. However, if you are a California employer, you want to be wary of how you treat a situation of medical leave abuse, as discipline for the use of sick leave or paid time off can create the risk of exposure to unlawful retaliation claim against your business.

Punishment for Excessive Absenteeism

According to California Governor Gerry Brown’s emergency amendment to California’s paid sick leave law, “Employers may not retaliate or discriminate against employees who (i) exercise the right to use paid sick leave, (ii) cooperate in an investigation or prosecution of an alleged violation of the Act or (iii) oppose a policy or practice prohibited by the Act.”

Furthermore, the act does not require an employee to produce a doctor’s note before or after he or she takes a sick day. This makes it difficult for an employer to prove that an employee was actually sick, so even if they do catch wind that Bob was in fact at a Giant’s game when he was supposed to be at home sick, they cannot ask Bob about the details of his illness.

Under AB 1522, an employee does not need to provide advance notification of when they will be taking a sick day if the need is not “reasonably foreseeable,” nor do they need to find a replacement to cover their scheduled shift in the event that they fall ill. Each of these aspects of the law makes it essentially impossible for an employer to discipline an employee for pulling a “no-call, no-show”

In addition, the law expressly prohibits an employee from discriminating against an employee who uses accrued sick leave in any manner, which means that so long as an employee is able to accrue sick days, they can use them—without having to ever justify any excessive time off whatsoever.

How to Deal with Sick Leave Abuse in California

 As an employer, you want to be able to provide your employees with adequate time off for illness or for a loved one’s illness; however, there are a few bad apples out there who may make you want to limit paid sick time as much as you possibly can. If you have run into problems with paid sick leave abuse, there may not be anything you can do about past abuse, but you can prevent it in the future, by reviewing and rewriting your sick leave policy.

At Garcia & Gurney, ALC, our employment law attorneys understand the ins and outs of California labor law better than most, and have helped countless California employers draft contracts, policies, and employee handbooks that meet the employers’ objectives while still remaining in compliance with California’s many labor laws. If you need help drafting a sick leave policy that is in compliance with AB 1522, but that leaves no room for abuse, contact our employment lawyers at 925-468-0400 or online to schedule a private consultation today.