Sick Leave
Once upon a time, too many of us believed that coming to work while sick was what dedicated employees were supposed to do. Once upon a time, we thought that only surgeons wore masks, that only germaphobes washed their hands all the time. Once upon a time, employees came to work sick because they felt they had no choice or because there was no one and no system to cover for them.
Things are a little different now.
Covid-19 has made many of us reconsider the importance of workplace practices that protect our health and the health of everyone we work with. Employees should not come to work while sick. Staying at home allows them to take care of themselves and protect their coworkers. Sick leave makes it easier for employees to do this and is an important element of ensuring a healthy and happy on-set environment. However, the details of sick leave— when you need to provide it, how it accrues, and how employees can use it—can be a little bit complicated. But we compliance enthusiasts at OOTB are here to help you.
We’ll answer the following questions:
What is sick leave?
Do I, as an employer, have to provide sick leave?
How is sick leave accrued?
What can an employee use their sick leave for?
What’s the difference between sick leave and PTO?
How soon after onboarding can an employee start using their sick leave?
First, some quick housekeeping:
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And an important note: The information provided in this article does not, and is not intended to, constitute legal, tax, or financial advice. All information, content, and materials available in this article are for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. We highly recommend that you seek the advice of an attorney or tax professional rather than relying solely on the information provided herein.
What is sick leave?
Sick leave is paid time off hours, granted to qualified employees to be used when they are sick or caring for a sick family member.
Do I, as an employer, have to provide sick leave?
It depends on where your business is located. Requirements for sick leave differ at the federal, state, and local levels.
Federal Requirements:
According to the U.S. Department of Labor’s website page on sick leave, the federal government does not require employers to provide sick leave to employees, except in certain situations that are dictated by the Family and Medical Leave Act (FMLA). The Family and Medical Leave Act of 1993 is a United States labor law requiring covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. According to the DOL, under the FMLA, qualified employees are eligible for up to 12 weeks of unpaid FMLA leave for certain medical situations experienced by the employee or the employee’s immediate family. There are two sets of requirements that must be met for an employee to legally take FMLA leave: workplace requirements and medical situation requirements.
Employees in the U.S. are eligible for FMLA leave if they meet the following workplace qualifications:
They work in a business with 50 or more employees within 75 miles of the same location
They have worked for their employer for at least one year
They have worked at least 1,250 hours for their employer over the past year
California Requirements:
According to the CA Department of Industrial Relations website page, Paid Sick Leave, “All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, and temporary employees,” are entitled to paid sick leave. There are exceptions for certain workers, but none of them pertain to the commercial photography industry. Therefore, as far as we and our readers are concerned, employers in California in the commercial photography industry must provide paid sick leave to employees when the criteria are met.
San Francisco Requirements:
According to the City of San Francisco’s page, The San Francisco Paid Sick Leave Ordinance, San Francisco matches the state of California’s standard for paid sick leave. All San Francisco employers are required to provide paid sick leave to all of their employees who have worked for them for 30 days or more.
How is sick leave accrued?
This again depends on where your business is located. The way that sick time is meant to accrue differs depending on your civic and state laws. The federal government does not require sick leave, except for the certain specific scenarios stated above, so there are no federal requirements for how sick leave is accrued.
California Requirements:
According to the aforementioned DIR page on paid sick leave, California employers are only required to grant their employees at least 24 hours or 3 workdays of paid sick leave per year. Employers can choose whether they want to offer this time as a chunk to be used as soon as employees are eligible, or to require employees to “earn” their sick leave over time.
If an employer chooses the first, up-front option, their new employees are entitled to at least 24 hours of paid sick leave, to be used beginning on the 120th calendar day of employment. Employees who have worked for their employer more than 120 days are required to receive their next chunk of paid sick leave after working for their employer for a year.
If an employer chooses the second “earning” or accrual option, employees start earning sick time hours on the first day of employment, and an employee must be able to accrue at least 24 hours of paid sick leave on the 120th calendar day of employment. Employers have the option of only allowing their employees to take a total of 24 hours of paid sick leave per year, and/or to limit the total number of accrued hours of paid sick leave to 48 hours, or six days.
San Francisco Requirements:
San Francisco’s accrual requirements, as stated by the same San Francisco Paid Sick Leave Ordinance page, cited above, contain fewer choices than the California requirements. San Francisco employers must provide their employees with 1 hour of paid sick leave for every 30 hours worked. Accrual begins on the first day of employment. If an employer has 10 or more employees, they can limit the total number of sick time hours accrued to 72 hours. If the employer has less than ten employees, they can cap their employee’s sick time at 40 hours.
What can an employee use their sick leave for?
According to the DIR:
In the State of California, employees can use paid sick leave for:
Themselves
Their close family members (grandparent, parent, child, grandchild, spouse, or registered domestic partner, or sibling)
In any of the following situations:
Illness
Preventive care (doctor’s appointments, vaccinations, etc.)
If they are victims of domestic abuse, sexual assault, or stalking
Additionally, according to the city of San Francisco's page, San Francisco Paid Sick Leave and the Coronavirus, there are additional sick leave guidelines from the Office of Labor Standards Enforcement related to the COVID-19 crisis. Under this guidance, employees must also be allowed to take accrued sick leave hours for the following situations:
They are required to quarantine by their healthcare provider or public health officials
They are caring for a close family member who has to quarantine.
Their place of work is forced to close to prevent the spread of COVID-19.
They have to care for a close family member whose school, daycare, or work is temporarily closed due to COVID-19
They are part of a “vulnerable population”
This same page defines “vulnerable population” as “a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system.”
What’s the difference between sick leave and PTO?
There are three ways they differ: what employees may use them for, whether or not they are required by California law, and whether it carries on after termination of employment.
An SHRM article titled, How to Develop and Administer Paid-Leave Programs, lays this out very simply. Sick leave is time off, paid or unpaid, relating to illness, injury, or prevention. Paid time off is “a bank of leave time that employees may use for any reason, such as personal or family illness, personal reasons, vacation, or any other reason determined by the employee.” PTO, as you might expect, is always paid.
According to the above article, there is no Federal requirement for either paid sick leave or paid time off. The state of California requires paid sick leave, but does not require paid time off. However, the state of California, according to the DIR page, Paid Sick Leave, does allow employers to offer employees paid time off plans in lieu of paid sick leave plans, so long as they meet the same requirements of sick leave plans (i.e., 24 hours of sick time per year).
Lastly, according to the DIR page, Vacation, if an employer offers paid time off, it must be accrued over time and can’t be taken away. If an employee stops working for an employer, the paid time off must be paid out upon employment termination. Sick leave, on the other hand, does not continue after termination of employment, unless the employee returns to work for the employer again within a year.
How soon after onboarding can an employee start using their sick leave?
In California and San Francisco, according to the DIR page, Paid Sick Leave, and the San Francisco City Government website’s Paid Sick Leave Poster, an eligible employee can begin using their sick leave on their 90th day of work.
This wraps up the answers to your most common questions about sick leave in San Francisco and California. Please note that this article focused exclusively on OOTB’s local guidelines. If you live in a different city, state, or especially country, your laws are most likely different. To recap, all employers in the commercial photography industry in California must provide sick leave to their employees who work more than 30 days. Sick leave in San Francisco begins accruing on the first day of work at the rate of one hour of sick leave per 30 hours worked. Employees can start using their sick leave on the 90th day of employment, for most things related to preventing disease and treating disease in themselves and their close family members. Sick leave differs from PTO in that sick leave is required in the state of California, while PTO is not, and sick leave does not carry over after termination, while PTO needs to be paid out. Lastly, on a more personal note, if your employees are sick, please tell them to stay home. Keep your workplace safe and healthy.
Resources:
Society for Human Resource Management. (2021). How to develop and administer paid-leave programs. https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtodevelopandadministerpaidleaveprograms.aspx
United States Department of Labor. Sick leave. https://www.dol.gov/general/topic/workhours/sickleave
United States Department of Labor. Wage and Hour Division. (2020, July 16). Family and medical leave act. https://www.dol.gov/agencies/whd/fmla
California Department of Industrial Relations. (Updated 2017, March 29). California paid sick leave: frequently asked questions. https://www.dir.ca.gov/dlse/paid_sick_leave.htm
San Francisco Office of Labor Standards Enforcement. (2014). Paid sick leave ordinance. https://sfgov.org/olse/paid-sick-leave-ordinance-pslo
San Francisco Office of Labor Standards Enforcement. (2014). Paid sick leave poster. https://sfgov.org/olse/sites/default/files/Document/Paid%20Sick%20Leave%20Poster%20-%20Post.pdf
San Francisco Office of Labor Standards Enforcement. (2020, March 24). San Francisco paid sick leave & the coronavirus. https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus
California Department of Industrial Relations. (2021). Vacation. https://www.dir.ca.gov/dlse/faq_vacation.htm