(August
1999)
New Law Expands Sick Pay to “Family Illness”
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January 1, 2000
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All employers who offer paid
sick time
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| On July 23, 1999, Governor Gray
Davis signed AB 109, which requires employers who offer paid
sick time to allow employees to use at least 50% of that paid
time to attend to the illness or medical needs of the employee’s
spouse, child or parent (collectively referred to as “Family
Illnesses”). |
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The new statute contains some ambiguity,
and it will be up to the California Labor Commissioner (who will
be authorized to enforce the new law) to interpret what it means.
We expect some degree of clarification around November 1999;
watch for updates from Waag and Co. Until then, the following
is what the new law appears to require:
During any calendar year, the employer must allow employees to
use at least 50% of their annual allotment of paid sick time for
Family Illnesses. The new law defines parent to include the employee’s
biological, foster or adoptive parent, a stepparent, or a legal
guardian; child is defined as a biological, foster or adopted child,
a stepchild, a legal ward, or a person standing in loco parentis
(i.e., filling the same role as one would have in a parent/child
relationship); the law does not specifically define spouse, seeming
to indicate that the term is limited to legally married couples.
All conditions or restrictions an employer places on employee-illness
use of paid sick time will also apply to absences for Family Illnesses.
For example, if employees may use paid sick time for their own
doctor’s appointments, or must call work by a certain time
when out sick, then the same would appear to apply to Family Illnesses
as well.
The statute also provides that employers shall not deny an employee
the right to use paid sick time, nor discharge, threaten to discharge,
demote, suspend, or in any way discriminate against an employee
for using, or attempting to exercise the right to use paid sick
time for a Family Illness. If an employer violates this last provision,
the aggrieved employee would be entitled to reinstatement plus
actual damages, or one day’s pay, whichever is greater. This
would be in addition to any other legal remedies the employee may
have. It is unclear from the statute whether or not there would
be any penalty for an employer who permits unpaid sick time for
an employee’s own illness, but does not excuse an unpaid absence
for a Family Illness on the same basis. |
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Many employers already include
Family Illnesses as a legitimate use of paid sick time, believing
that otherwise, an employee with a sick child may feel forced
to lie about an absence. Given that a specific number of paid
sick days has already been budgeted, such employers view this
flexibility as a valuable employee benefit. AB 109 will make
this the policy for all employers who offer paid sick time.
Any absences under this new statute would not extend the amount
of time off to which an employee would be entitled under the federal
Family & Medical Leave Act or the comparable California Family
Rights Act.
Employers will need to decide whether to restrict use of paid sick
time for Family Illnesses to the minimum entitlement of 50%. The
employer would need to track the specific reasons for each sick-time
absence, and may wonder if employees who have used their 50% are
lying about the reasons for later absences. It may be simpler to
allow all sick time to be equally available for either employee
illness or Family Illnesses.
Some employers have reacted to AB 109 by deciding to eliminate
all paid sick time, thereby avoiding the need to deal with Family
Illnesses. While within their rights, employers should carefully
consider the negative impact this may have on current employees
and future recruiting efforts. Remember, the new law does not require
employers to increase the total amount of paid sick time offered.
Alternatively, there have long been several ways in which employers
can motivate employees not to use all of their available paid sick
time. Such methods increase productivity regardless of why paid
sick time is available. Employers should review their sick pay
policies and consider effective ways in which the use of paid sick
time for employee/Family Illnesses can be controlled, while still
providing a valuable benefit. |
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