How do I pay out sick leave to a part-time employee in California?
If a restaurant employee works typically 6 hours per day, how many hours of sick pay must an employer distribute for a period of the employees illness? The law does not seem to define specifically and leaves the matter at:
(j) An employee may determine how much paid sick leave he or she needs to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
Does that mean the employee claims as much they can up to the amount they have accrued regardless of how many days off they need to take? Or can the employer limit the paid absence to two hours per day missed, or some other iteration?
The text of the law also vacillates between “paid sick days” and “paid sick leave.” Making it unclear if an hourly employee claims days missed, or hours missed.
In my example, an employee typically works 6 hours per day, missed one day of work and is claiming 12.5 hours of sick pay, which is the entirety of the employees current accrual. The issue both of us face is that, other than the annual accrual rules, the law and published guidelines do not define the rights of either party regarding how to pay out a claim.
You have a good question. The net of this is that the employee can’t take more sick pay than they would have worked. So if they took a day off sick, and that’s 6 hours, they can’t request more than six hours of sick pay leave. It doesn’t matter if she has 12.5 hours accrued. She was off for six hours only, she gets paid for six. The rest is there in case she’s sick or needs to take paid leave in the future.
As far as whether you even have to pay that much depends on several factors — what city you’re in, how many employees you have, whether she’s exempt or non-exempt, how long has the employee worked for you, and do you allow employees a grant of sick leave at the start of the year, or accrue it? (Keep in mind, if you term the employee, you have to pay out all unused earned sick and vacation pay, as California doesn’t allow use it or lose it policies.)
The two hours thing is tricky and legalese. What it means in layman’s terms is that they can’t take sick leave in increments under 2 hours as an example (and that’s only if you have a policy that says so). So ignore that if you don’t have such a policy.
From what you’ve written, I’d pay out six hours (sounds like she has that much accrued), and educate her on your policy. If you don’t have a policy, it’s best to get one in writing. Here’s more on California Sick Leave and info on how to create Leave Policies.
As we’re not labor law attorneys, we can’t provide other than general suggestions. We’re prohibited from providing legal advice.
Laura, SPHR, MA Ed
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