San Diego Sick Leave Law

In addition to the new minimum wage law that voters in San Diego recently approved is a new ordinance regarding sick leave that impacts all employers – including household employers – in that city. The San Diego sick leave law supplements the California sick pay law, and employers must comply with both the state and local laws, whichever is more beneficial to employees. Here are all the details about the new law relevant for household employers:

Applicability

Employers must provide employees who work two or more hours per year in San Diego, whether full-time, part-time, or temporary, with paid sick leave based upon the number of hours worked.

This ordinance does not apply to employees whose terms and conditions of employment are covered by a bona fide collective bargaining agreement, so long as the agreement provides more earned sick leave than required by the ordinance.

Accrual

Employees will accrue one hour of paid sick leave for every 30 hours worked. Exempt employees will be presumed to work 40 hours per week unless they are regularly scheduled to work fewer hours, in which case accrual will be based on their usual schedule. Accrual will begin immediately upon employment. There is no cap on accrual of hours.

Use of Leave

Employers may cap use of leave at 40 hours per year. Employers may prevent employees from using any time accrued until their 90th day of employment. Employers must allow employees to use sick leave in increments as small as two hours.

Employers cannot require employees to find their own replacement worker as a condition of taking sick time.

Employees may use sick leave for the following reasons:

• The employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition of the Employee.
• The employee’s absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee.
• The employee’s absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination.
• The employee is providing care or assistance to a family member, with an illness, injury, or medical condition, including assistance in obtaining professional, diagnosis or treatment of a medical condition.
• The employee or their family member is obtaining:
  • Medical attention needed to recover from physical or psychological injury or disability caused by domestic violence, sexual assault, or stalking;
  • Services from a victim services organization;
  • Psychological or other counseling;
  • Relocation due to domestic violence, sexual assault, or stalking; or
  • Legal services, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic violence, sexual assault, or stalking.
• The employee is providing care or assistance to a child, whose school or child care provider is closed by order of a public official due to a public health emergency.

Family members include:

• Children, whether biological, adopted, step, foster, the child of a domestic partner or a child for whom the employee stands in loco parentis;
• Parents, whether biological, adopted, step, foster, in-law; a legal guardian; or someone stood in loco parentis when the employee was a minor;
• Grandparents;
• Grandchildren;
• Siblings, whether biological, adopted, step, or foster;
• Legal guardians and wards;
• Spouses.

Payment

When sick leave is used, it must be paid at the employee’s regular rate of pay. Employees need not be compensated for unused sick leave at the end of employment. However, employees rehired within six months of termination will have any previously accrued but unused sick leave reinstated unless it was paid out upon termination.

Notice

From employees: Employers may request reasonable advance notice if the need for leave is foreseeable, though not more than seven days, and may request and notice as soon as practicable if the need for leave is not foreseeable.

From Employers: Employers must post a notice informing employees of their rights under the ordinance in a location where employees can easily read it. The notice must be posted in English and any other language for which the San Diego County Registrar of Votes provides translated ballot materials that are also spoken by more than 5% of the employer’s workforce at the job site. Employers must also provide each employee with written notice of the employer’s name, address, and telephone number and the employer’s obligations under the ordinance; this notice must be in English or the employee’s primary language if it is spoken by more than 5% of the employer’s workforce and is a language for which the County Registrar provides translated ballot materials.

Documentation

For an absence of more than three consecutive workdays, an employer may require reasonable documentation signed by a licensed health care provider indicating how much leave was needed and that the leave was taken for a permissible purpose. The employer may not require that the documentation specify the nature of the employee’s or the employee’s family member’s medical condition.

Employers must keep records of sick leave accrual and use for three years, and allow the Enforcement Office access to those records upon request.

Infringement and Retaliation

It is unlawful for an employer or any other person to deny, interfere with, or fail to pay for sick time an employee has the statutory right to use. Employers also must not implement or enforce an absence control policy that has the intent or effect of making the use of sick time afforded by this law a cause for discipline. Retaliation or discrimination with respect to terms and conditions of employment because an employee inquires about, requests, or uses sick time, or initiates or participates in any investigation related to this statute is unlawful.

For more information and to learn how GTM keeps families compliant with household employment laws, contact us at (800) 929-9213.