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Issue 1 - 2015 Newsletter

In This Issue:

  • Employers Need Not Provide Indefinite Leave of Absences to Await Future Job Openings
  • California Posts New Frequently Asked Questions and Answers on the Paid Sick Leave Law
  • San Francisco, Oakland, and San Diego Paid Sick Leave Laws

 

Employers Need Not Provide Indefinite Leave of Absences to Await Future Job Openings 

California law requiring employers to provide reasonable accommodations to disabled employees does not require an employer to provide an indefinite leave of absence to await possible future vacancies, according to a recent California Appellate Court decision (Nely v. City of Santa Monica).

At the end of 2012, the California Fair Employment & Housing Commission issued regulations confirming that paid or unpaid leave of absences may be a reasonable accommodation under California disability law.  Part of the regulations state:  “When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment or recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan, may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.”  In other words, employers may be required to provide leave of absences to disabled employees as a reasonable accommodation, even beyond that which is required by the Family Medical Leave Act and California Family Rights Act.

In this recent California court decision, the former employee argued that he should be allowed to remain on an indefinite leave of absence while awaiting a vacant position to arise.  He was unable to perform certain essential functions of his position including heavy lifting and equipment maintenance and inspection.  Doctors indicated that he was precluded from these essential job duties indefinitely.  

The Court decided that a “finite” leave of absence may be a reasonable accommodation to allow an employee to recover, but the Fair Employment & Housing Act does not require the employer to provide an “indefinite” leave of absence to await possible future vacancies.  Therefore, once it was determined that the employee could not perform the essential functions of his job on an indefinite basis, he was no longer qualified for his position and his employment could be terminated.

Before relying upon this court’s rationale, employers must be careful to ensure that an employee truly cannot perform the essential functions of his/her job on an indefinite basis, before concluding that an employee is unqualified for his/her position.  Also, an employer should carefully consider whether there are any open positions that a disabled employee may be qualified to fill (with or without reasonable accommodation) before concluding that his or her employment should be terminated because he is unqualified.  

 

California Posts New Frequently Asked Questions and Answers on the Paid Sick Leave Law

The Division of Labor Standards Enforcement has posted updated questions and answers on California’s new paid sick leave law.  Although the law took effect on January 1, 2015, the right to accrue and take sick leave under the new law does not take effect until July 1, 2015.  Employers should be well under way in assessing their options and revising their policies to comply with this new law.  The updated frequently asked questions and answers can be found at http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm.

 

Do You Have Employees in San Francisco, Oakland or San Diego?

With all the attention on the California new Paid Sick Leave Law, employers should remember that certain cities in California impose greater sick leave requirements on employers.

San Francisco Paid Sick Leave

The San Francisco Paid Sick Leave Ordinance went into effect on February 5, 2007 and requires employers to provide most employees employed within the geographic boundaries of the City of San Francisco with paid sick leave.  However, the Ordinance does not apply to employees who are covered by a collective bargaining agreement to the extent that the Ordinance’s requirements are “expressly waived” in the CBA in “clear and unambiguous terms.”

Those employees working for an employer before the operative date of the law began accruing paid sick leave as of February 5, 2007.  Employees hired after February 5, 2007 accrue paid sick leave 90 days after commencement of employment.  Paid sick leave is accrued at a rate of one hour for every 30 hours worked in one hour increments on hours worked within the geographic boundaries of San Francisco.  Employees who work fewer than 56 hours in a calendar year in San Francisco are not covered by the Ordinance.  

Sick leave for employees who work for a “small business” may be  capped at 40 hours at any given time.  A “small business” is a business that regularly employs less than 10 employees (including those working outside of City of San Francisco).  Employers with 10 or more employees may cap accrued paid sick leave at 72 hours per employee. However, sick leave will once again begin to accrue once the employee’s accrued sick leave falls below the cap.  There is no limit on the number of accrued paid sick leave hours an employee may use in any year.  Unused paid sick leave carries over from year to year.  

Paid sick leave can be used not only for an employee’s own illness or medical diagnosis or treatment, but also to aid or care for the employee’s child, parent, legal guardian or ward, sibling, grandparent, grandchild, and spouse or registered domestic partner or other designated person who is ill, injured, or requires medical diagnosis or treatment.  The employee may use all or any percentage of his or her paid sick leave to aid or care for the aforementioned persons.  Under the Ordinance, the familial relationship extends not only to biological relationships, but also relationships resulting from adoption, step-relationships, and foster care relationships.  “Child” includes a child of a domestic partner and a child of a person standing in loco parentis. 

The Ordinance also permits a covered employee without a spouse or registered domestic partner to designate one person for whom the employee may use paid sick leave to provide aid or care.  An employee must be permitted to make such a designation no later than the date on which the employee accrues his/her first hour of paid sick leave (i.e., the employee has worked 30 hours after paid sick leave begins to accrue).  The employee has 10 work days in which to make the designation.  Annually thereafter, an employee with no spouse or registered domestic partner must be provided a 10-day window to make a designation, including the opportunity to change any previous designation.

Employers may require employees to give “reasonable notification” of an absence from work for which paid sick leave is or will be used.  However, an employer may not require an employee to find a replacement worker to cover his or her paid sick leave as a condition of using paid sick leave.  An employer may “take reasonable measures to verify or document that an employee’s use of paid sick leave is lawful.”  However, the Ordinance does not define “reasonable measures.”

Employers are not required to pay employees for accrued but unused paid sick leave at termination of employment.  

Employers that have a paid time off policy that makes available to employees paid leave that may be used for the same purposes as under the Ordinance and meets the other requirements of the Ordinance are not required to provide additional paid sick leave. 

Employers must post a notice in a conspicuous place at any site where employees work “in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace or job site” informing employees of their rights to San Francisco Paid Sick Leave.  The San Francisco Office of Labor Standards Enforcement (“OLSE”) is authorized and has published a Notice describing the law’s requirements.  A copy of this notice can be obtained at: http://sfgsa.org/modules/showdocument.aspx?documentid=8726

The Ordinance makes it unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise an employee’s right to paid sick leave.  Employers may not retaliate against any employee for requesting or using paid sick leave, making a complaint or informing any person about an employer’s alleged violation, cooperating with an investigation into an alleged violation, or informing any person about their right to paid sick leave.  Policies which penalize employees for taking paid sick leave days as allowed by the Ordinance are unlawful.  An adverse employment action taken within 90 days of an employee engaging in any of the above-mentioned protected activities raises a rebuttable presumption that the adverse employment action was in retaliation for exercising his/her right(s).  The Ordinance also provides a private right of action and the right to recover attorneys’ fees and costs to the prevailing plaintiff. 

Finally, the Ordinance requires employers to maintain records of the hours worked by employees, and the paid sick leave taken, for a period of four years.  If the employer does not maintain or retain adequate records documenting hours worked by the employee and paid sick leave taken by the employee, or does not allow the OLSE reasonable access to such records, it is presumed that the employer has violated the Ordinance, absent clear and convincing evidence otherwise.

Oakland Paid Sick Leave

Oakland recently enacted Measure FF which took effect on March 2, 2015 and requires employers to provide, among other things, most of their employees with paid sick leave.  A copy of the Measure and Frequently Asked Questions (FAQs) published by the Oakland City Attorney’s Office may be found at: http://goo.gl/3fIDK2.  

Employees who work at least two (2) hours in a particular week within the geographical boundaries of the City of Oakland are eligible for paid sick leave.  The Measure does not apply to employees who are exempt from state minimum wage requirements (e.g., apprentices regularly indentured under the State Division of Apprenticeship Standards).  Further, the Measure permits waiver of paid sick leave for union employees whose employer has entered into a written valid collective bargaining agreement if such waiver is set forth in clear and unambiguous terms.  

Employees begin accruing paid sick leave on March 2, 2015, or upon commencement of employment, whichever is later.  Paid sick leave may be used in one hour increments.  Paid sick leave is accrued at a rate of one hour for every 30 hours worked in one hour increments.  Sick leave for employees who work for a “small business” may be capped at 40 hours at any given time.  A “small business” is a business that regularly employs less than 10 employees (including those working outside of the City of Oakland).  Employers with 10 or more employees may cap accrual at 72 hours of sick leave.  As soon as the number of accrued sick leave hours falls below the cap, the employee will once again begin to accrue. There is no limit on the number of accrued paid sick leave hours an employee may use in any year.  Unused paid sick leave carries over from year to year.  

Employees hired after March 2, 2015 may not use paid sick leave until they reach 90 days of employment.  There is no limit on the number of accrued paid sick leave hours an employee may use. An employer is not required to permit the use of accrued paid sick leave when the employee is working, scheduled to work, or transferred to work outside of Oakland.  However, the employer must keep the hours in the employee’s bank for four years and permit use if and when the employee is scheduled to work in Oakland during those four years.

Paid sick leave can be used not only for an employee’s own illness or medical diagnosis or treatment, but also to aid or care for the employee’s child, parent, legal guardian or ward, sibling, grandparent, grandchild, and spouse or registered domestic partner or other designated person who is ill, injured, or requires medical diagnosis or treatment.  Under the Measure, the familial relationship extends not only to biological relationships, but also relationships resulting from adoption, step-relationships, and foster care relationships.  “Child” includes a child of a domestic partner and a child of a person standing in loco parentis. 

The Ordinance also permits a covered employee without a spouse or registered domestic partner to designate one person for whom the employee may use paid sick leave to provide aid or care.  An employee must be permitted to make such a designation no later than the date on which the employee first accrues an hour of paid sick leave (i.e., the employee has worked 30 hours after paid sick leave begins to accrue).  The employee has 10 work days in which to make the designation.  Annually thereafter, an employee with no spouse or registered domestic partner must be provided a 10-day window to make a designation, including the opportunity to change any previous designation.

Further, an employer may not require its  employee to find a replacement worker to cover his or her paid sick leave as a condition to using paid sick leave.  

Employers are not required to pay employees for accrued but unused paid sick leave at termination of employment.  

Employers that have a paid time off policy that makes available to employees paid leave that may be used for the same purposes as under the Ordinance and meets the other requirements of the Ordinance are not required to provide additional paid sick leave. 

Employers must give written notification to each current employee and to each new employee at time of hire of his or her right to paid sick leave.  The notification shall be in all languages spoken by more than 10% of the employees, and shall also be posted prominently in areas at the work site where it will be seen by all employees.  The City Administrator is authorized to prepare sample notices and employer use of such notices shall constitute compliance with this subsection.  

Employers may not retaliate against any employee for requesting or using paid sick leave, making a complaint to the City of Oakland, participating in any of its proceedings or using any civil remedies to enforce his or her rights under the Ordinance.  The Ordinance also provides a private right of action and the right to recover attorneys’ fees and costs to the prevailing plaintiff. 

Further, the Measure requires employers to maintain for at least three years for each employee a record of his or her name, hours worked, pay rate, and paid sick leave accrual and usage.  Each employer must provide each employee a copy of the records relating to him or her upon the employee’s reasonable request.

San Diego Paid Sick Leave

The below article is superceded:  The San Diego Sick Leave ordinance is now on hold, pending a June 2016 voter referendum.  If approved by the voters, employees who work at least two (2) hours a week within the boundaries of San Diego will become eligible for San Diego paid sick leave.  For more information regarding the referendum, please refer to the San Diego City Council’s Resolution:     http://docs.sandiego.gov/council_reso_ordinance/rao2014/R-309274.pdf

Effective April 1, 2015, employees who work at least two (2) hours a week within the geographical boundaries of the City of San Diego will become eligible for paid sick leave.  The law excludes a narrow category of employees from its coverage including those who are exempt from state minimum wage requirements (e.g., apprentices regularly indentured under the State Division of Apprenticeship Standards).  Persons receiving services under the California In-Home Supportive Services program pursuant to Welfare Institutions Code section 12300 are exempt from the coverage of this law. 

Employees will begin accruing paid sick leave on April 1, 2015, or upon commencement of employment, whichever is later.  Paid sick leave is accrued at a rate of one hour for every 30 hours worked.  Employers are not required to allow accrual of paid sick leave in increments less than 1 hour.  

Employees who are not covered by overtime requirements of California law are assumed to work forty (40) hours in each work week unless their regular work week is less than forty hours, in which case sick leave accrues upon that regular work week. 

There is no limit on the number of paid sick leave hours an employee may accrue.  However, employers may limit an employee’s use of paid sick leave to forty (40) hours a year.  Further, employers may require employees to use paid sick leave in minimum increments of up to 2 hours.  Unused paid sick leave carries over from year to year.  

Employees are entitled to begin using paid sick leave on their 90th day of employment or after July 1, 2015, whichever is later.  After the 90th day of employment or after July 1, 2015, whichever is later, an employee may use paid sick leave as it is accrued. 

Employees may use paid sick leave for any of 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 from 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.  A “family member” means a child, spouse, parent, grandparent, grandchild, sibling or the child or parent of a spouse.

The employee’s absence is the employee’s use of “safe time”.  “Safe time” means time away from work that is necessary due to domestic violence (Penal Code section 13700), sexual assault (Penal Code sections 261, 243.4), or stalking (Penal Code section 646.9), provided the time is used to allow the employee to obtain for him or herself or family member (1) medical attention; (2) services from victim services organization; (3) psychological counseling; (4) relocation; (5) legal services, including preparing or participating in any civil or criminal legal proceeding.

The employee’s place of business is closed by the order of public official due to a “Public Health Emergency,” or the employee is providing case 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.  A “child” means a biological, adopted, or foster child; a stepchild; a legal ward; a child of a domestic partner; or a child of an employee standing in loco parentis.  A “Public Health Emergency” means a state of emergency declared by any public official with the authority to do so.

An employer may require reasonable notice of the need to use paid sick leave.  Where the need is foreseeable, the advance notice of intention to use may not exceed seven days prior to the date when such leave is to begin.  Where the need is not foreseeable, the employee is to provide notice as soon as practicable.  Moreover, for absences exceeding three consecutive days, the employer may require reasonable documentation that the use was authorized for purposes referenced above.  However, an employer may not require employee to find a replacement worker to cover his or her paid sick leave as a condition to using paid sick leave.  

Employers are not required to pay employees for accrued but unused paid sick leave at separation from the employer.  However, if an employee separates but s/he is rehired within six (6) months of the separation by the same employer, previously accrued and unused paid sick leave must be reinstated, unless paid out at termination.  Further, should an employee be transferred to a separate division, entity, or location in San Diego, but remains employed by the same employer, s/he is entitled to retain and use all of his/her paid sick leave as before.

Employers that have a paid time off policy that makes available to employees paid leave that may be used for the same purposes and under the same condition as the law requires are not required to provide additional paid sick leave.

Further, employers must keep contemporaneous records of paid sick leave accrual and usage for at least three years.  Employers must also provide written notice to employees about paid sick leave entitlement by posting in a notice in a conspicuous place and by providing to each employee at the time of hire, or by April 1, 2015, whichever is later, written notice of the employer’s name, address, and telephone number and the employer’s obligations under the Ordinance.  The notification shall be in English and all languages spoken by more than 5% of the employees.  The City of San Diego will prepare and make available a sample notice for employers to use.  

The Ordinance prohibits retaliation against any employee for requesting or using paid sick leave, complaining about violations of the Ordinance, communicating with any person about any violation or alleged violation, or participating in administrative or judicial action regarding a violation of the Ordinance.  The law also provides a private right of action to enforce its provisions and the right to recover attorneys’ fees and costs to a prevailing plaintiff.

Issue 2 - 2015 Newsletter
Issue 3 - 2014 Newsletter

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