Berkeley’s New Paid Sick Leave Law Takes Effect October 1, 2017

If you’re an employer or employee in Berkeley, California today is a big day!  Berkeley’s new “Paid Sick Leave Ordinance” takes effect today and offers covered employees extraordinarily generous paid sick leave rights.

Interplay with California’s State Paid Sick Leave Law

Like the other 7 municipalities that have local sick leave laws, Berkeley’s new paid sick leave law must be read in conjunction with the State of California’s paid sick leave law.  On those terms where this new Berkeley paid sick leave law is different than the state paid sick leave law, a Berkeley employer is required to offer to its employee the terms from whichever law is more generous to the employee.

The new Berkeley paid sick leave law takes effect on October 1, 2017.  Therefore, employees who already have accrued paid sick leave under the older state law must be allowed to keep that sick leave and then use it consistent with the term of the older state law.

Covered Employers and Employees

The new Berkeley paid sick leave law covers all employers who (a) employ or “exercise control over” a worker’s wages, hours, or working conditions, or (b) hold a Berkeley business license.

The new Berkeley paid sick leave law covers any employee who (a) performs at least 2 hours of work within Berkeley’s geographic boundaries in a week, and (b) qualifies as an employee entitled to payment of a minimum wage under state law or is a Welfare-to-Work recipient.

Sick Leave Accrual, Caps, and Carry Over

Under the new Berkeley paid sick leave law, a covered employee accrues 1 hour of paid sick leave for every 30 hours worked.  Accrual occurs in 1 hour units and not fractionally.  A covered employee begins to accrue paid sick under the new law on October 1, 2017 or the employee’s start date, whichever is later.

Accrued sick leave carries over from year-to-year up to any cap set  by the employer.  Employers with 25 or more employees working in a week can set a cap on accrual at 72 hours.  Employers with less than 25 employees working in a week can set a cap on accrual at 48 hours.

Wage statements (or pay stubs) given to an employee in Berkeley must include the number of paid sick leave hours accrued by that employee.

Sick Leave Usage

Under the new Berkeley paid sick leave law, an employee with accrued paid sick leave can begin using sick leave 90 days after October 1, 2017 or the employee’s start date, whichever is later.

Once eligible, an employee can use paid sick leave earned under the new law for any of the following reasons:

  • when the employee is ill or injured;
  • for the purpose of the employee’s receiving medical care, treatment, or diagnosis;
  • to aid or care for a covered family member or other “designated person” who is ill or injured or receiving medical care, treatment, or diagnosis; and/or
  • for reasons related to domestic violence, sexual assault, or stalking (as allowed under the California state paid sick leave law but curiously omitted from the new Berkeley law).

The new Berkeley paid sick leave law defines a “covered family member” as a child, parent, legal ward or guardian, grandparent, grandchild, spouse, or registered domestic partner.  This includes biological relationships as well as adoptive, step, and foster care relationships.

Covered employers must notify an eligible employee of his/her right to make a designation within 30 hours of paid sick leave beginning to accrue.  The employee then has 10 days to make the designation.  Thereafter, the employee shall have the right to make a new designation, or change a previously made designation, on an annual basis.

Under the new Berkeley paid sick leave law, an employer can require that sick leave be used in minimum 1 hour increments.  However, after the initial hour “in each occurrence,” the employer can only require that sick leave be used in 15 minute increments.

An employer with less than 25 employees can limit an employee’s paid sick leave usage to 48 hours in a calendar year.  Employers with 25 or more employees cannot impose any annual usage limitation.

Employers may not condition the use of sick leave on an employee searching for or obtaining coverage for their shift.

Notice to Employers

Under the new Berkeley paid sick leave law, if the need for paid sick leave is “foreseeable” then the employee must provide the employer with reasonable advance notice.  However, if the need for leave is not foreseeable, then the employee must provide notice of the need for sick leave as soon as practicable.

Payment of Sick Leave Wages

Sick leave hours are paid at an employee’s then-current hourly wage.  Employers must pay an employee for sick leave hours no later than the next regular payday after the sick leave was taken.

Employers’ Notice, Posting, and Record-Keeping Obligations

Employers must conspicuously post the city-provided notice about paid sick leave at any workplace or job site in Berkeley where any employee works.  The notice must be posted in any language spoken by at least 5% of employees at the workplace or job site.

If an employee does not have a regular workplace or job site where they perform work, employers must provide a copy of the city-provided notice to the employee when he/she is hired or assigned to work in Berkeley.  This notice must be provided before the employee commences work in Berkeley and in the language the employee most easily comprehends.

Employers must keep employee payroll records for a period of 4 years following the date of an employee’s termination.  The payroll records must identify hours worked, wages paid, and paid sick leave accrued.  If an employer does not make, keep, or retain proper records documenting this required information, an employee’s account of how much paid sick leave he/she accrued, used, and/or was paid for is presumed accurate absent clear and convincing evidence otherwise from the employer.

Employers With Existing Sick Leave and/or PTO Policies

If you are an employer and you already have a paid sick leave policy, paid time off policy, paid vacation policy, or other policy that makes paid sick leave available to employees on terms that are at least as generous as those under the new Berkeley paid sick leave law, then you may not be required to do anything more to satisfy the new Berkeley paid sick leave law.

What Should Employers Do Now?

If you are an employer anywhere in the state and you have 1 employee who does any work in Berkeley — even from home — then you are likely a covered employer subject to the new Berkeley paid sick leave law.  You should speak to your employment/HR counsel to ensure that you (a) understand the new law’s requirements and the interplay between the new Berkeley paid sick leave law and existing state law, and (b) are fully in compliance for all covered employees.

You can read the full text of the new law here.

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