Paid Sick Leave Handbook Statement [1-9 Employees; Accrual Method]: Oakland, California

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include

Employers with fewer than 10 employees should include this statement in their handbook to educate employees who work within the City of Oakland about the availability of paid sick leave and to show their compliance with Oakland's Paid Sick Leave Law.

Employers with:

  • 10 or more employees must provide eligible employees with up to 72 hours of paid sick leave; and
  • Fewer than 10 employees must provide eligible employees with up to 40 hours of paid sick leave.

Employers must count all employees (full-time, part-time, temporary and those staffed through a temporary services or staffing agency), including those working outside of the City of Oakland and those working in different locations for the same employer.

Calculating business size for the current calendar year is based on the average number of individuals who worked for pay per week during the preceding calendar year. For new employers, it is based on the average number of individuals who worked for pay for the first 90 days after its first employee began work. Employers must calculate their business size each calendar year to ensure compliance with the law. If the number of persons who work for compensation fluctuates above and below ten per week over the course of a year, businesses should calculate their size for the current calendar year based on the average number of persons who worked for compensation per week during the preceding calendar year.

Customizable Handbook Statement

Paid Sick Leave (Oakland)[Accrual Method]

The Company provides eligible employees with paid sick time in accordance with the requirements of the Oakland Minimum Wage Ordinance (OMWO).

The guidelines set forth in this policy do not supersede applicable federal, state or local law regarding leaves of absence, including leave taken under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) and/or as a reasonable accommodation under the Americans with Disabilities Act (ADA), Americans with Disabilities Act Amendments Act of 2008 (ADAAA) or California Fair Employment and Housing Act (FEHA), or any other applicable federal, state or local law, including those prohibiting discrimination and harassment.

Eligibility

All employees (whether full-time, part-time or temporary and including household employees) who perform at least two hours of work in Oakland in a workweek are eligible to accrue paid sick leave.

Employees are eligible to accrue paid sick leave only for the hours worked in Oakland.

Accrual and Use of Sick Leave

Eligible employees begin accruing paid sick leave upon the first day of employment, but may not use it until after 90 calendar days of employment with the Company.

Employees accrue one hour of sick leave for every 30 hours worked in Oakland, up to a maximum of 40 hours. The number of hours a nonexempt employee is deemed to work each week will be based on time records and includes all hours worked, including overtime hours. Exempt employees are assumed to work 40 hours per workweek, unless evidence exists that their normal workweek is fewer than 40 hours per week, in which case accrued paid sick leave is based upon that particular workweek.

Once the maximum accrual cap is reached, employees will not accrue additional paid sick time until their accrual balance falls below the cap.

Employees must use their sick leave in one hour increments.

Accrued but unused sick leave can be carried over from year to year. However, once the maximum amount has been accrued, no further sick leave will accrue until previously accrued sick leave is used. Employees will not accrue sick leave during unpaid leaves of absence.

Reasons Sick Leave May be Used

Paid sick leave can be used only for the following reasons:

  • When the employee is physically or mentally unable to perform duties because due to an illness, injury or a medical condition;
  • To obtain professional treatment or diagnosis for the employee's medical condition;
  • For an employee's other medical reasons, such as pregnancy or obtaining a physical examination; and
  • To care for a family member or designated person who is ill, injured or receiving medical care, treatment or diagnosis.

A family member includes an employee's child, parent, legal guardian or ward, sibling, grandparent, grandchild, spouse or registered domestic partner (the relationship may be biological, foster, adoptive or a step-relationship.) "Child" includes a child of a domestic partner and a child of a person standing in loco parentis. If an employee does not have a spouse or registered domestic partner, he or she may designate one person for whom the employee wishes to use sick leave to aid or provide care for that person. Designation of this person must be done within 10 workdays of the Company providing the opportunity to make a designation. Thereafter, the Company will provide an opportunity to re-designate a person on an annual basis with a window of 10 workdays.

Sick leave can be used only for the reasons identified above and only for hours when an employee is scheduled to work in Oakland. If there is reason to believe that sick leave has been misused, sick pay may not be awarded.

Employees are not required to find an employee to cover their work when they take paid sick leave.

Requesting Sick Leave/Documentation

Except in the case of an emergency, employees must give reasonable advance notice of any absence from work for which they intend to use paid sick leave. To provide notice of the need to use sick leave, employees should contact their Human Resources representative [or insert name/contact details for appropriate company representative, department or call-in procedure].

Upon return, employees must immediately complete a time card (nonexempt employees) or absence report (exempt employees) documenting the use of sick leave.

For absences of three or more consecutive days, the Company reserves the right to request documentation of the qualifying use of paid sick leave, as permitted under applicable local, state or federal law. Additionally, if the Company reasonably suspects an employee is abusing this policy, it may require a doctor's note for subsequent use of paid sick leave, even if the employee's use of paid sick leave was for fewer than three consecutive workdays.

Rate of Pay for Sick Leave

For nonexempt, hourly employees, sick leave will be paid at the employee's regular hourly rate of pay at the time the employee uses the leave. For exempt employees, payment will be calculated by dividing the employee's weekly salary by 40 hours, unless evidence suggests that the employee's regular workweek is less than 40 hours. In that case, pay will be calculated by dividing the employee's weekly salary by the number of hours during their regular workweek.

Integration With Other Benefits

It is an employee's responsibility to apply for any applicable benefits for which the employee may be eligible as a result of the illness or disability, including California State Disability Insurance, workers' compensation insurance, paid family leave benefits and/or any other disability insurance benefits. If an employee elects to integrate paid sick leave with other paid benefits, the Company will integrate all paid benefits such that an employee will not be paid more than his or her regular compensation at any time.

Separation From Employment

Compensation for accrued and unused paid sick time is not provided upon separation from employment for any reason.

Confidentiality

The Company will keep confidential any medical documentation regarding leave use, in accordance with federal, state and local law.

Effect on Other Rights and Policies

The Company may provide other forms of leave for employees to care for medical conditions or for issues related to domestic violence under certain federal, state and municipal laws. In certain situations, leave under this policy may run at the same time as leave available under another federal, state, or municipal law, provided eligibility requirements for that law are met. The Company is committed to complying with all applicable laws. Employees should contact their Human Resources representative [or insert name/contact details for appropriate company representative or department] for information about other federal, state, and municipal domestic violence, medical, or family leave rights.

No Discrimination or Retaliation

The Company will not retaliate, or tolerate retaliation, against any employee who seeks or obtains sick leave in accordance with this policy and/or the law, who makes a good-faith complaint about an OMWO violation, participates in any proceedings, uses any civil remedies to enforce his or her rights or otherwise asserts rights under the OMWO.

Guidance for Employers

  • This statement is intended to be used by employers with fewer than 10 employees. Employers with 10 or more employees should use the Paid Sick Leave Handbook Statement [10+ Employees; Accrual Method]: Oakland, California.
  • This Oakland Paid Sick Leave policy may require significant customization to meet a particular employer's needs and/or to integrate with existing paid time off policies. For example, employers that provide paid leave that meets or exceeds Oakland Minimum Wage Ordinance (OMWO) requirements do not need to provide additional paid sick time. However, it is important to ensure that the employer addresses any discrepancy or shortfall with regard to the law's requirements, such as covered employees, rates of accrual, permissible reasons for use, recordkeeping obligations, notice requirements, and carryover. Work with legal counsel to integrate existing paid leave benefits with required paid sick time.
  • Employers must ensure that they are complying with both the paid sick leave requirements of OMWO and with the California Healthy Workplaces Healthy Families Act (HWHFA), which imposes paid sick and safe time requirements on California employers. Employers that use a general PTO policy to comply with the OMWO should also ensure they comply with the HWHFA. They must also ensure compliance with California's kin care law, which requires employers who provide sick leave that is accrued and can be used by an employee for HWHFA-covered purposes allow use in a calendar year of at least half of an employee's accrued and available annual sick leave entitlement for HWHFA-covered reasons.
  • The sample policy statement provided assumes an accrual method, by which employees accrue time as they work. Employers may risk a violation of the law if they simply "frontload" paid sick leave hours at the beginning of the year, meaning provide employees with a year's entitlement of paid sick leave on the first day of the leave year. Under the accrual method, the number of leave hours an employee earns is based upon how many hours s/he works and whether the employer implements a lawful cap.
  • To be eligible for paid sick leave under the OMWO, employees must:
    • Work at least two hours within the geographic boundaries of the City of Oakland in a particular week, regardless of the employer's location; and
    • Qualify as an employee entitled to the state minimum wage.
  • "Particular Week" is defined as any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. An employer can establish the day of week when an employee's "particular week" starts, but, once a workweek is established, it remains fixed regardless of the employee's working schedule. An employer can change an employee's workweek only if the change is intended to be permanent and is not designed to evade an employer's paid sick leave obligations.
  • Eligible employees who travel through Oakland and stop in Oakland for work, including travel within the City to and from worksite(s), are covered and accrue leave for all hours worked in Oakland. However, employees who work outside of Oakland and who travel through Oakland, but do not stop in the City for work, are not eligible to accrue leave.
  • Eligible employees who live in Oakland and perform work for an employer from home, including for employers located outside of Oakland, are covered and accrue leave for all hours they work from home in Oakland.
  • Paid sick leave under the OMWO does not apply to properly classified independent contractors.
  • Paid sick leave does not apply to individuals covered by a valid collective bargaining agreement (CBA) if the law's requirements are expressly waived in clear and unambiguous terms within the CBA.
  • Employees hired after March 2, 2015 are not entitled to use paid leave until after 90 calendar days of employment. However, such employees will begin accruing paid sick leave on their first day of work.
  • An employer cannot require, as a condition of taking paid sick leave, that an employee search for, or find, a replacement worker to cover hours during which leave will be taken.
  • Policies or practices that require a physician's note or other medical documentation for leave use of fewer than three consecutive work days is presumptively unreasonable. For leave use of three or more consecutive work days (whether full or partial days), they are presumptively reasonable.
  • Unless abuse is suspected and can be demonstrated, employers cannot require an employee to incur expenses exceeding $5 to show eligibility for leave. If an employer requires an employee - who has not otherwise sought medical care during leave - to obtain medical documentation solely to verify leave compliance, the employer must pay all costs that exceed $5.00.
  • The California HWHFA does not contain provisions on required documentation. Further, the California Division of Labor Standards Enforcement has previously stated in a webinar on the HWHFA that an employee could file a claim against an employer for denying paid sick and safe time on the basis that the employee failed to "provide details," including a doctor's note. In other words, an employer may be charged with interfering with an employee's use of paid sick leave if the employer asks for a doctor's note as a prerequisite for taking or paying for leave.
  • An employee can use paid sick leave not only for his or her own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, but also to provide care or assistance to a covered family member or designated person with an illness, injury, medical condition, or need for medical diagnosis or treatment. Accrued paid sick leave can be used in the following instances:
    • Physical or mental illness, injury, or a medical condition;
    • Diagnosis or treatment of a medical condition; and
    • Other medical reasons, such as pregnancy or obtaining a physical examination.
  • Employers can require employees to provide reasonable notification of an absence for which leave is or will be used, but cannot impose unreasonable notification requirements on employees. What is reasonable depends on the situation. However, employer policies or practices should not be so onerous that they deter employee from legitimate leave use.
  • Employers must establish a reasonable procedure for employees to communicate absences, e.g., providing employees with a telephone number that has a voicemail box or live person answering the telephone is reasonable.
  • Employees accrue one hour of paid sick leave for every 30 hours worked. Accrual only occurs in one-hour increments - accrual does not occur in fractions of an hour.
  • Whether an employee accrues paid sick leave on overtime hours worked depends on whether the employee is exempt under the Fair Labor Standards Act (FLSA) and California law. For employees who are not exempt from the overtime provisions of the FLSA and California law, paid sick leave accrues on all hours worked, including overtime hours. If an employee is properly classified as exempt from the overtime provisions of the FLSA and California law, paid sick leave accrues based on a 40-hour workweek, absent clear and convincing evidence that the exempt employee's regular workweek is less than 40 hours. In such instances, paid sick leave will accrue based on the regular workweek for that exempt employee.
  • Employees may use paid sick leave in one-hour increments. However, an employer may choose to permit employees to use leave in less than one-hour increments.
  • If an exempt employee takes an entire day off for paid sick leave purposes, employers must deduct eight hours of accrued leave from the employee's sick leave bank unless there is evidence that the employee's regular workweek is less than 40 hours, in which case hours worked by the employee during a regular workweek should be divided by the number of days worked during a regular workweek to calculate the number of hours that will be deducted from the employee's sick leave bank.
  • Employers may choose to allow employees to use accrued, paid sick leave when employees are transferred to work outside of Oakland. If they do not, accrued leave hours "remain in the bank" for four years from the employee's last day of work in Oakland. The accrued, unused leave hours are available for use if the employee works or is scheduled to work in Oakland during those four years.
  • Accrual of paid sick leave can be capped at 40 hours for employers with fewer than 10 paid employees in a given week and at 72 hours for employers with 10 or more employees.
  • An employer is not required to pay out accrued, unused paid sick leave to an employee at any time during employment or at the time of separation of employment. However, if an employer uses its paid time off (PTO) or vacation policy to comply with the OMWO, employers must comply with California law concerning payment of earned but unused vacation pay when employment ends.
  • For hourly employees, sick leave is paid out at an employee's regular hourly rate that is in effect when the paid sick leave is taken.
  • For salaried employees, the sick leave pay rate is determined by dividing the annual salary by 52 to obtain the employees' weekly salary, and then dividing the weekly salary by the number of hours the employee is regularly scheduled to work. For nonexempt employees, the weekly salary must be divided by 40 or fewer hours, even if the employee regularly works more than 40 hours per week. For exempt employees, the weekly salary is divided by 40 hours unless clear and convincing evidence exists that the employee's regular workweek is less than 40 hours, in which case the weekly salary is divided by the number of hours during a regular workweek.
  • If an employee holds two positions or jobs with different pay rates, sick leave pay is based on the pay rate applicable to the job the employee is scheduled to perform when leave is taken.
  • Employers are not required to factor in tips when calculating the rate for tipped employees when they use accrued, paid sick leave. Instead, the rate is based on what the employer pays the employee.
  • Sick leave under the OMWO must be paid no later than the payday for the next regular payroll period after the sick leave was taken. However, if the employer has a lawful, reasonable verification or documentation requirement, it is not obligated to pay sick leave until the employee has complied with the requirement.
  • At the time of hire, employers must provide employees with written notice of his or her rights under the OMWO. The notice must be in all languages spoken by more than 10 percent of employees. The notice must be prominently posted in areas at the worksite where it can be seen by all employees.
  • For each employee, employers must keep records of the employee's name; hours worked; pay rate; paid sick leave accrual and usage; and service charge collection and distribution. Such records must be kept for at least three years and provided to employees upon request.
  • Employers may not terminate, reduce the pay of, or otherwise discriminate against a person for making a complaint to the City of Oakland, participating in any proceedings, using any civil remedies to enforce rights, or otherwise asserting rights under the law.
  • Employers cannot respond to the law's requirements by reducing pay of any non-management employee or by reducing the pension, vacation, or other non-wage benefits of any employees. Also, employers cannot increase charges to them for parking, meals, uniforms, or other items.
  • Within 120 days of an employer being notified of an employee engaging in protected activity, it is unlawful for an employer to discharge an employee who engaged in protected activity unless the employer has clear and convincing evidence of just cause for the termination.
  • Supervisors should be trained regarding how to respond to requests for leave so that they do not take any adverse actions (e.g., termination, demotion) against employees who are eligible for leave and who request or take leave.

Additional Resources

Paid Sick Leave by State and Municipality

Paid Sick and Safe Time Handbook Statement [Accrual Method]: California

Paid Sick and Safe Time Handbook Statement [Lump Sum Method]: California