More recently, most focus has been on the new federal paid sick and emergency family and medical leave, now available through the Families First Coronavirus Response Act (FFCRA). However, for several years, California already had its own paid sick leave mandate. As the Labor Commissioner noted, an employee must be allowed to use available California paid sick leave for illness related to the COVID-19 virus and be compensated at the rate that California law requires. The same requirements also would apply to Paid Time Off (PTO) provided in lieu of separate paid sick leave.
The Labor Commissioner reminded employers that California paid sick leave may be used for absences because of illness, diagnosis, care, or treatment of an existing health condition, as well as for preventative care, for the employee or certain family members. The family members for whom an employee may use paid sick leave include a child or stepchild (regardless of age or dependency status), spouse, registered domestic partner, parent or stepparent of an employee’s spouse or registered domestic partner, grandparent, grandchild, and sibling.
Significantly, in the Labor Commissioner’s view, preventative care under California’s paid sick leave law may include “self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities.” The agency also identified other situations that possibly may qualify for paid sick leave use under the law as including “where there has been exposure to COVID-19 or where the worked has traveled to a high-risk area.”
If an employee does not qualify to use paid sick leave or does not have any paid sick leave available, the Labor Commissioner noted that other paid leave (e.g., vacation or floating holidays) may be available under an employer’s policy. But, as the Labor Commissioner also noted, the use of such other paid leave depends on whether the employer’s policy allows for use of such paid leave in the particular circumstance (or, as in some cases, the law otherwise may allow the employee to use it).
Can an employer require an employee to use paid sick leave for an absence? Here, the Labor Commissioner said no. Using the example of a quarantined employee, the agency stated that an employer cannot require the employee to use or exhaust paid sick leave because “that is the worker’s choice.” This position thus would require an employer to allow an employee who cannot work, or who needs to be off work for covered reasons, to let an employee be absent without pay – a position seemingly inconsistent with the fact that California law entitles an employee “to paid sick days” and protects an employee for “using accrued paid sick days.” (Cal. Labor Code § 246(a)(1), § 246.5(c)(1), italics added.) If the employee chooses to use paid sick leave, California law allows the employer to require a minimum use of at least two hours. Otherwise, the agency reiterated its position that “[t]he determination of how much paid sick leave will be used is up to the employee.”
The Labor Commissioner did not address the FFCRA. Importantly, though, the new federal paid sick leave under the FFCRA is in addition to paid sick leave that California state law or local ordinances require, or that an employer provides under its policies. Several local jurisdictions in California, including San Francisco, Los Angeles, San Diego, Oakland, and Berkeley, have their own paid sick leave ordinances that differ in some ways from California’s state law. The FFCRA’s paid sick leave also differs, including in its qualifying uses and the required rates of pay. The federal FFCRA also provides that it is the employees’ choice – not the employer’s – with respect to which type of paid leave the employee may wish to use or to use first.
