California Expands Paid Sick Leave for Certain School Employees and Expands Protections to Previously Exempt Employees Covered by Collective Bargaining Agreements

10.11.2023

On October 4, 2023, Governor Newsom signed Senate Bill 616 (“SB 616”) into law, which increases the amount of paid sick leave employers are required to provide under the Healthy Workplaces, Healthy Families Act of 2014 (“Act”; Labor Code § 245, et seq.). Additionally, SB 616 extends certain procedural and anti-retaliation provisions in the Act to employees covered by collective bargaining agreements who are currently otherwise exempt from the provisions of the Act. The changes to the Act take effect January 1, 2024.

Who Is Covered By the New Law?

Under existing law, California employers are required to provide paid sick leave to employees who meet certain eligibility and accrual requirements. In general, all school district employees are covered by the law, even if they already earn sick leave. However, the Act excludes employees who are in bargaining units where the contract:

Provides paid sick leave or paid time off for illness;
Includes binding arbitration of grievances relating to the paid time off;
Grants premium wage rates for all overtime hours work; and
Sets forth a regular hourly rate of pay not less than 30% more than the state minimum wage rate. (This threshold amount is currently $20.15/hour and will increase to $20.80/hour beginning January 1, 2024.)

The Act also does not apply to CalPERS retirees who return to work without reinstatement. The law does not specifically exclude CalSTRS retirees.

Because the Education Code generally grants more full-paid illness leave than that mandated by the Act, the real impact for public school districts has been primarily on substitutes and seasonal workers who are not in a bargaining unit and do not also hold a regular certificated or classified position. These employees do not receive sick leave under the Education Code and therefore will be impacted by changes to the Act as discussed below.

Increased Sick Leave for Non-Bargaining Unit Employees

Effective January 1, 2024, California employers will generally have the following three options to choose from to comply with the Act:

As before, the employee can accrue 1 hour of sick leave for every 30 hours worked; or
The employee can receive an upfront grant of 40 hours or 5 days of paid sick leave at the beginning of employment and the start of each 12 month period thereafter (i.e. “front-loading”) (when front-loading no carryover or accrual of sick leave is required); or
The employee can accrue sick leave at a rate other than 1 hour of sick leave for every 30 hours worked, provided the accrual is regular and results in the accrual of no less than 24 hours or 3 days of sick leave by the 120th day of employment and no less than 40 hours or 5 days of sick leave by the 200th day of employment.

When sick leave is accrued (i.e., it is not being frontloaded), as before, the employee is not entitled to use the accrued sick leave until the 90^th day of employment. SB 616 will allow employers to impose a maximum accrual cap of 80 hours or 10 days and a use limit of 40 hours or 5 days per 12-month period. Under existing law, the allowable maximum accrual cap is 48 hours or 6 days and the allowable use limit is 24 hours or 3 days per 12 month period.

As before, an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon separation from employment, but if the employee is rehired within one year, then the previously accrued and unused paid sick days shall be reinstated.

New Provisions Applicable to Bargaining Unit Members

Although bargaining unit members have generally been exempt from the Act (as described above), SB 616 applies certain procedural and anti-retaliation provisions in the Act to these employees. Existing law prohibits employers from denying an employee’s right to use sick leave; from taking any adverse employment action or discriminating against an employee for using sick leave provided by the Act; and from retaliating against an employee for taking paid sick leave pursuant to the Act or filing a complaint with the Labor Commissioner alleging a violation of the Act. Beginning January 1, 2024, these provisions will also apply to bargaining unit employees who are currently exempt from the Act.

As California K-12 and higher education employers will be impacted by SB 616, please do not hesitate to contact the author of this Alert or your usual AALRR attorney in order to update your paid sick leave policy or with any questions.