California Update: Attendance Policies May Interfere with Paid-Sick-Leave Rights

By Christopher W. Olmsted © Ogletree Deakins May 9, 2017

Many employers enforce attendance policies that assign an "occurrence" for unscheduled, unapproved absences. Although employers generally have discretion to implement attendance policies, such policies should be carefully crafted to avoid running afoul of antidiscrimination and antiretaliation provisions found in certain state and local paid-sick-leave laws.

In California, the state labor agency—the Division of Labor Standards Enforcement (DLSE)—recently published an updated FAQ which addresses this topic.

The California paid-sick-leave law, known as the Healthy Workplaces, Healthy Families Act of 2014, required employers to provide paid sick leave beginning on July 1, 2015. Generally, the law requires employers to provide at least one hour of paid sick leave for every 30 hours worked, or a minimum annual lump sum of 24 hours.

Sick leave may be used for the diagnosis, care or treatment of an existing health condition of—or preventive care for—an employee or an employee's family member, and also for an employee who is a victim of domestic violence, sexual assault or stalking.

Doctor's Appointments

In its recent publication, the DLSE posed the following question: Can my employer discipline me for taking a paid sick day or for using paid sick leave for part of a day to go to a doctor's appointment?

The DLSE answers the question in the negative: "In general, no, an employer may not discipline an employee for using accrued paid sick leave. Depending on the circumstances, however, the issue may be more complex and may require more analysis."

The agency cites to California's paid-sick-leave law, which includes an antiretaliation provision:

"An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article." (Lab. Code § 246.5, subd. (c)(1).)

The DLSE also points to a second antiretaliation clause found in California's "Kin Care" law, Labor Code Sections 233 and 234. Section 233 requires an employer to allow an employee to use accrued and "available" sick leave (which is the amount that would accrue during a six-month period) for the purposes specified in the paid-sick-leave law. Labor Code section 234 provides that "[a]n employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233."

The agency concludes: "This means, in general terms, that if an employee has accrued sick days available, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use paid sick leave for a partial day (e.g., to attend a doctor's appointment), and may not discipline the employee for doing so."

Accrued and Available Leave

This does not mean that an employer may never discipline an employee for missing work. If the employee does not have any accrued or available sick leave, as in the case where the employee has used up all of his or her available time under the employer's sick pay policy, the employer may give the employee an "occurrence" for the absence that otherwise violates the company's attendance policy.

This is so even if the absence would have counted as covered sick leave had the employee not exhausted his or her accrued time.

The paid sick leave law does not "protect" all time off taken by an employee for illness or related purposes; it "protects" only an employee's accrued and available paid sick leave as specified in the statute.

The DLSE's FAQ clarifies: "The paid sick leave law does not 'protect' all time off taken by an employee for illness or related purposes; it 'protects' only an employee's accrued and available paid sick leave as specified in the statute."

The DLSE further clarifies that where only part of the absence is covered by accrued paid sick leave, the employer may assign an "occurrence" for the uncovered portion. For example, if an employee is absent for a full eight-hour day of work, but elects to use only four hours of his or her accrued paid sick leave, the employer would be allowed to discipline the employee for the half day of absence for which no paid sick leave was used.

Similarly, if the employee had a full day absence, but only had available four hours of accrued paid sick leave, the employer could discipline the employee for the half day absence under the employer's attendance policy.

So far, no California published appellate decision has addressed this topic, and it is important to note that the DLSE's online publication does not have the force of law. In any event, the publication addresses an important topic, which employers should carefully consider when crafting an attendance policy that assigns adverse consequences for unapproved or excessive absences.

Christopher W. Olmsted is an attorney with Ogletree Deakins in San Diego. © Ogletree Deakins. All rights reserved. Reposted with permission. 

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