On December 12, 2023, California’s Labor Commissioner revised its FAQs to address changes that will occur on January 1, 2024, to the Healthy Workplaces Healthy Families Act (HWHFA), the statewide paid sick and safe leave law. Since amendments made by SB 616 were enacted on October 4, 2023, employers have anxiously awaited the Labor Commissioner’s interpretation of the changes. Although revisions for many FAQs are minor and simply account for the increased amount of leave employees can accumulate, carry over, or use as of January 1, 2024, certain new FAQs provide insight into practical challenges some employers will face, shed light on issues the Labor Commissioner did not address in previous FAQ iterations, and make known the agency’s position on its interpretation of amended provisions applicable to companies with employees covered by a collective bargaining agreement (CBA). Although FAQs do not carry the same legal weight as the law itself, or regulations, they are instructive as to how the agency will approach enforcement. Below we highlight some new items that will be relevant to employers in 2024 and future years.
Employers Using Non-Calendar Years to Comply: Under the HWHFA, employers can designate any consecutive 12-month period as their “year” for compliance purposes. Recognizing that January 1, 2024, might be in the middle of an employer’s designated year, the Labor Commissioner added two new FAQs addressing actions employers can take, depending on whether they use an accrual-based or frontloading (a.k.a. “up-front”) method to comply. If employees accrue leave, employers must increase the temporary accrual cap on January 1 from 48 hours or 6 days to 80 hours or 10 days (in both cases, whichever is greater). For employers that frontload leave, the up-front allocation increases from 24 hours or 3 days to 40 hours or 5 days (in both cases, whichever is greater). Per the Labor Commissioner, “[t]he employer has the choice to frontload the two additional days on January 1, 2024 or move the measurement of the yearly period to January 1, 2024 and frontload five days.” Regardless of which method an employer uses, if it adopts an annual use cap, on January 1, 2024 that use cap must increase from 24 hours or 3 days to 40 hours or 5 days (in both cases, whichever is greater).
Documentation: Under the HWHFA, “an employer is not obligated to inquire into or record the purposes for which an employee uses paid leave or paid time off.” Accordingly, the law does not expressly prohibit employers from requesting that an employee provide documentation to substantiate that their use of paid leave was for a qualifying purpose (many local laws expressly permit such requests, e.g., Berkeley, Los Angeles, Oakland, San Diego, and San Francisco). Previously, the Labor Commissioner had not addressed this issue in FAQs, opinion letters, or its enforcement policies and interpretations manual. Now, however, its revised FAQs do:
Can an employer require certification from a health care provider before allowing an employee to take paid sick leave when the request is for a qualifying reason?
Generally, no. An employer may not deny an employee paid sick leave based solely on a lack of certification from a health care provider. An employee is entitled to take paid sick leave immediately upon the covered employee’s oral or written request. The leave is not conditioned on medical certification.
Although an employer cannot deny paid sick leave solely for lack of a medical certification, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has information indicating that the employee is not requesting paid sick leave for a valid purpose. In any such instance, the reasonableness of the parties’ actions will inform the outcome of the claim.
Employees Covered by a Collective Bargaining Agreement: Before SB 616, the HWHFA contained two CBA-related exceptions; one inside, and another outside, the construction industry. SB 616 changed the “outside” provision so that, generally, these employees were exempt from the law’s requirements if the CBA satisfied certain requirements. However, effective January 1, 2024, the law will apply to them in three specific ways: 1) they can use paid leave for themselves or family members for the same reasons under the HWHFA; 2) they cannot be required to find a replacement worker to cover their shift when they use paid leave; and 3) they cannot be denied the ability use paid leave, or be retaliated or discriminated against for attempting to or using paid leave, filing a complaint, cooperating in an investigation of an alleged violation, or opposing an unlawful policy.
Many have found this particular change to be confusing—asking how employees could be simultaneously “exempt” and “covered” under the law. According to a revised FAQ:
Employees partially exempt from paid sick leave include employees outside the construction industry covered by a collective bargaining agreement (CBA) with specified provisions. However, these workers are still entitled to some paid sick leave under their CBA. In addition, as of January 1, 2024, these employees must be allowed to take sick leave for all the purposes specified in the paid sick leave law and cannot be required to find a replacement as a condition for taking paid sick leave. These employees are also protected by the law’s anti-retaliation provisions.
For example, if an employee covered by a qualifying CBA is denied paid sick leave because they could not find a replacement worker, the employer would be in violation of California’s paid sick leave law and the employee could seek remedies for these violations by filing a claim with the Labor Commissioner’s Office.
This is the extent of the Labor Commissioner’s discussion of the CBA-related amendments. The limited discussion of this change’s impact still leaves employers with CBA-covered employees with questions. For example, it is unclear how to harmonize an employee’s ability to immediately file a complaint with the Labor Commissioner while the HWHFA requires the at-issue CBA to provide for “final and binding arbitration of disputes concerning the application of its paid sick days provisions.”
Next Steps: With fewer than three weeks remaining before SB 616’s HWHFA changes take effect on January 1, 2024, these FAQs may prompt some employers to (quickly) review and revise (or further review and revise) their paid sick and safe leave policies and procedures. For others, however, the FAQs may simply offer reassurance that their operations or approach to compliance is on solid footing. Whether you’re panicked or prepared, one thing is certain – next year’s plan must incorporate SB 616’s HWHFA changes.