United States: Important Paid Sick Leave Law Developments – San Diego, San Francisco, Berkeley

California's various prescriptions for paid sick leave continue to proliferate and evolve, with recent changes to ordinances in San Diego and San Francisco and the addition of yet another local law, this time in Berkeley.

San Diego

When San Diego voters initially approved the city's paid sick leave law, it contained no provision for a cap on accrual, spawning an epidemic of concern among employers about how to deal with the costs and burden of employees racking up unlimited amounts of paid sick time. The city has tried to remedy this and other concerns with its Earned Sick Leave and Minimum Wage Implementing Ordinance, enacted on Aug. 3, 2016. Now, San Diego employers are permitted to cap total accrual of paid sick leave at 80 hours. Other changes include the following:

• Notice and posting. Every employer must provide each employee at the time of hire, or by Oct. 1, 2016, whichever is later, a written notice with certain required information. The city has prepared a notification form that is available at the following URL: https://www.sandiego.gov/sites/default/files/trs_employee_notification.pdf.
• Front-loading. Employers may satisfy the accrual and carryover provisions by providing no less than 40 hours of paid sick leave at the beginning of each benefit year.
• Start of accrual. Paid sick leave begins to accrue at the commencement of employment or on July 11, 2016, whichever is later.

San Diego also has created an FAQ about the city's paid sick leave and minimum wage ordinance, available at the following URL: https://www.sandiego.gov/sites/default/files/tr_final_faq_9-2-16_0.pdf.

San Francisco

San Francisco was a pioneer when voters approved Proposition F in 2006, launching the city's paid sick leave law. But the city's ordinance varies from the statewide Healthy Workplaces, Healthy Families Act of 2014 and in some ways is less generous. San Francisco hopes that an amendment to its ordinance, effective Jan. 1, 2017, will be the cure.

The amendment brings San Francisco's ordinance in line with the state's law without changing city provisions, which are more generous than the state law. For example, the amendment provides that beginning Jan. 1, 2017, paid sick leave will begin to accrue on commencement of employment (instead of 90 days after commencement of employment).

Among the changes, the ordinance now expressly permits front-loading of paid sick leave. Front-loaded paid sick leave is treated as an advance on paid sick leave to be accrued. Unlike the state law, however, the ordinance does not provide that no accrual or carryover is required if an employer uses the front-loading method.

Berkeley

The Berkeley City Council passed a paid sick leave ordinance on Aug. 31, 2016, along with an amendment of its minimum wage ordinance. Employees begin accruing paid sick leave under the ordinance on Oct. 1, 2017. The ordinance applies to employees who, in a calendar week, work at least two hours within the city's geographic boundaries.

Employers must provide one hour of paid sick leave for every 30 hours worked, but employers are not required to provide paid sick leave in less than one-hour increments for a fraction of an hour worked. An employer that provides an amount of paid leave, including paid time off, vacation or personal days that is available for the same purposes as paid sick leave and meets the accrual requirements is not required to provide additional paid sick leave.

Paid sick leave under the ordinance begins to accrue at the commencement of employment or on Oct. 1, 2017, whichever is later. Small businesses (those with fewer than 25 employees in a given week) may cap accrual of paid sick leave at 48 hours, but for other employers, the maximum accrual cap is 72 hours. Small businesses may limit an employee's use of paid sick leave to 48 hours per calendar year, but other employers may not place such limits on use of accrued paid sick leave.

An employee may begin using accrued sick leave after the 90th calendar day of employment. In addition to uses permitted under the state's paid sick leave law, the Berkeley ordinance allows employees to use paid sick leave for a designated person if the employee has no spouse or registered domestic partner.

The paid sick leave requirements may be waived in a collective bargaining agreement if the waiver is explicitly set forth in clear and unambiguous terms.

Minimum wage

The minimum wage in Berkeley increases to $12.53 on Oct. 1, 2016, to $13.75 on Oct. 1, 2017, and to $15 on Oct. 1, 2018. Starting July 1, 2019, and on July 1 each year after, the city's minimum wage will increase by an amount corresponding to the prior year's increase in the cost of living.

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