Sick leave in California: how much do I get?

What the law says

Who qualifies. An employee who “works in California for the same employer for 30 or more days within a year from the commencement of employment” is entitled to paid sick days (Labor Code § 246(a)(1)).

How it builds up. You earn paid sick time “at the rate of not less than one hour per every 30 hours worked,” starting when you start the job (§ 246(b)(1)). If you are exempt from overtime as an administrative, executive or professional employee, you are treated as working 40 hours a week, unless your normal week is shorter (§ 246(b)(2)).

When you can use it. You can use sick time “beginning on the 90th day of employment” (§ 246(c)).

How much. Your employer may limit your use to “40 hours or five days” a year. Unused sick time “shall carry over to the following year,” but your employer may stop your total from building past “80 hours or 10 days” (§ 246(d), (j)). An employer can skip carryover by giving “the full amount of leave,” meaning “five days or 40 hours,” at the start of each year (§ 246(d)).

The details

Other ways to earn it. An employer may use a different method if you have at least 24 hours “by the 120th calendar day of employment” and at least 40 hours “by the 200th calendar day of employment,” or each year (§ 246(b)(3), (b)(4)). A paid time off policy can count if it can be used “for the same purposes and under the same conditions” (§ 246(f)).

Reasons you can use it. Your employer must provide sick days, on your “oral or written request,” for:

• “Diagnosis, care, or treatment of an existing health condition of, or preventive care for,” you or a family member (§ 246.5(a)(1));
• the purposes listed in Government Code § 12945.8 (§ 246.5(a)(2)). These include serving “on an inquest jury or trial jury,” appearing in court “as a witness” under a subpoena or court order, and time off when you or a family member is a victim of violence (the law’s “qualifying act of violence”), such as to seek a restraining order, medical care or counseling;
• for outdoor farmworkers, to avoid “smoke, heat, or flooding conditions” during a declared emergency (§ 246.5(a)(3)).

Family members. These include a child, parent, spouse, registered domestic partner, grandparent, grandchild, sibling, a parent or guardian of your spouse or partner, and one “designated person” that you name when you ask for sick days. Your employer may limit you to one designated person “per 12-month period” (§ 245.5(c)).

Notice. If you know ahead of time, you must give “reasonable advance notification.” If you do not, you must give notice “as soon as practicable” (§ 246(m)). What counts as reasonable depends on your facts.

Your employer cannot:

• make you “search for or find a replacement worker” (§ 246.5(b));
• deny sick days, fire, threaten, demote, suspend or otherwise discriminate against you for using or trying to use them, or for complaining (§ 246.5(c)(1)). If it does any of these within 30 days of your complaint (or of the other acts the section lists), the law sets “a rebuttable presumption of unlawful retaliation” (§ 246.5(c)(2)).

Pay and paperwork. Sick days are paid “at the same wage as the employee normally earns during regular work hours” (§ 245.5(e)); the law lists the ways an employer may figure that rate (§ 246(l)). You may decide how much to use, but your employer may set a minimum of up to two hours (§ 246(k)). Sick pay is due “no later than the payday for the next regular payroll period” after you use it (§ 246(n)). Your pay stub, or a separate writing on payday, must show how much you have (§ 246(i)).

When you leave. Unused sick time does not have to be paid out. If the same employer rehires you “within one year,” it comes back (§ 246(g)).

Who is left out. Some employees are excluded, such as some covered by qualifying union contracts, some airline flight crews, and some retired public employees working without reinstatement (§ 245.5(a)).

City laws. State law sets “minimum requirements” and does not limit any law that gives “greater accrual or use” (§ 249(d)). The Labor Commissioner’s FAQ says that if a local ordinance requires more paid sick leave, “the employer must provide the paid sick leave required by the local ordinance.” Some cities have their own sick leave laws. On six points, though, state law wins over any local ordinance “to the contrary” (§ 246(r)): lending sick days before you earn them, the pay stub notice of your balance, how the sick pay rate is figured, notice for leave you can foresee, when sick pay is due, and payout when you leave (§ 246(g), (h), (i), (l), (m), (n)). This guide covers state law only.

What to do next

1. Check your pay stub. It should show your available sick time.
2. Keep a record of each request: the date, how you asked, and the answer.
3. Contact the Labor Commissioner. It “shall enforce” the sick leave law (§ 248.5(a)). For unpaid sick pay, file a wage claim; its page says to file “Within three years” for sick leave violations.
4. For retaliation, you can file a complaint with the Labor Commissioner “within one year after the occurrence of the violation” (§ 98.7(a)).

This guide covers California state law. It is legal information, not legal advice.

Sources

1. Labor Code § 246, Who qualifies, accrual, use, carryover and caps
2. Labor Code § 246.5, Reasons to use sick days; no retaliation
3. Government Code § 12945.8, Time off for victims of crime and violence
4. Labor Code § 245.5, Definitions: who is excluded, family member, paid sick days
5. Labor Code § 247.5, Employer records
6. Labor Code § 249, More generous laws and policies
7. Labor Commissioner, Paid Sick Leave FAQ, California Paid Sick Leave: Frequently Asked Questions
8. Labor Code § 248.5, Enforcement by the Labor Commissioner
9. Labor Code § 98.7, Retaliation complaints
10. Labor Commissioner, How to File a Wage Claim, How to file a wage claim, and filing deadlines

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