Kathy from San Francisco writes: “I started working part-time for a small tech start-up in San Francisco in February this year. Last Wednesday, my five-year-old son came down with the stomach flu so I e-mailed my supervisor that evening that that I would not be working my shifts Thursday, and possibly Friday to take care of my sick child. When I returned to work on Monday, my supervisor told me that I should not be taking “so much” time off. I was confused by his statement because I have not taken any sick days since starting this job and just assumed that I had some available. I checked my paystub to confirm how much paid sick leave I have accrued but it did not have that information. I have my six-month performance review coming up. Should I be worried that taking a couple of days off to take care of my sick child will affect it?
Thank you for your question Kathy. I am sorry to hear about your son. I hope he is feeling better.
In 2007, San Francisco enacted a paid sick leave ordinance. Since then, California has made paid sick leave a legal requirement statewide. Last year, San Francisco voters passed Proposition E amending the San Francisco Paid Sick Leave Ordinance (“PLSO”) to expand certain provisions to parallel the California Healthy Workplaces Healthy Family Act. These updates went into effect on January 1, 2017.
Another common type of leave taken is the California Family Rights Act (“CFRA”) leave which is the California equivalent (but better) version of the federal Family Medical Leave Act. As discussed in a previous article, “qualified workers” may take up to 12 weeks of unpaid leave for their own medical condition or the serious medical condition of a parent, spouse, domestic partner, child. However, the CFRA does not cover companies with 50 or less employees. In order to be qualified, the employee must be employed with the company for at least 12 months and has worked at least 1,260 hours within the past 12 months. It does not appear that you are covered under the CFRA since you started working at your company in February this year.
In any event, the PLSO provides coverage for all employees, even if you are part-time or temporary, regardless of the size of the employer so long as you work in San Francisco at least 2 hours a week. There are two exceptions to PLSO: (1) employees who are covered by a collective bargaining agreement through their union if the union has agreed to waive the requirement; and (2) employers that already have a paid time off policy (where employees can take paid leave for at least as many hours as the ordinance requires).
Employees accrue 1 hour of sick leave for every 30 hours worked. If your employer has 10 or more employees, you can accumulate up to 9 work days (72 hours) of paid sick leave. If your employer has fewer than 10 employees, the maximum amount of paid sick time is 5 work days (40 hours). Under the new PLSO, employees start accruing sick leave on the first day of employment. You should have accrued paid sick leave since starting your part-time job in February and the amount of paid sick leave available to you should have been listed on your paycheck or wage statement.
Employees may use paid sick leave to miss work not only for his or her own illness, injury, or medical appointment for treatment or a checkup, but also to care for a parent or legal guardian, sibling, child, spouse or registered domestic partner, or grandparent. Children and parents under this law include step, adopted and foster children and parents. If the employee does not have a spouse or registered domestic partner, he or she can also designate one additional person whose care requires you to use your sick leave.
An employee must provide their employer with “reasonable” notice regarding taking paid sick leave. For example, an employee cannot ask to take paid sick leave on the same day for a medical appointment scheduled weeks ahead of time. Here, your child was unexpectedly sick and you notified your supervisor reasonably soon after you were aware and well before your next shift.
The law specifically provides that if you accumulate paid sick leave and take it for a valid reason, your employer cannot retaliate against you for doing so. Your performance review should not be affected for asserting your rights to sick leave under the law because your employer cannot count your paid sick leave as an absence towards getting disciplined, demoted, suspended or terminated.
If your employer retaliates against you for requesting and/or using paid sick day, you can file a complaint with the California Labor Commissioner’s office or consult with a trial attorney to protect your rights.
By attorney Christopher B. Dolan, owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com
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