Employer retaliation is unlawful when requesting paid sick leave

In San Francisco, an employee may use paid sick leave to care for a parent, legal guardian, sibling, child, spouse, registered domestic partner or grandparent. (Courtesy photo)

This week’s question comes from Kathy in San Francisco, who writes:

Q: “I started working part-time for a small tech startup in San Francisco in February. Last Wednesday, my 5-year-old son came down with the stomach flu, so I e-mailed my supervisor that evening that that I would not be working my shifts Thursday and possibly Friday to take care of my sick child. When I returned to work on Monday, my supervisor told me that I should not be taking “so much” time off. I was confused by his statement, because I have not taken any sick days since starting this job and just assumed that I had some available. I checked my pay stub to confirm how much paid sick leave I have accrued, but it did not have that information. I have my six-month performance review coming up. Should I be worried that taking a couple of days off to take care of my sick child will affect it?

A: Thank you for your question, Kathy. I am sorry to hear about your son. I hope he is feeling better. In 2007, San Francisco enacted a paid sick leave ordinance. Since then, California has made paid sick leave a legal requirement statewide.

Last year, San Francisco voters passed Proposition E, amending the San Francisco Paid Sick Leave Ordinance (PSLO) to expand certain provisions to parallel the California Healthy Workplaces Healthy Family Act. These updates went into effect Jan. 1, 2017. Another common type of leave taken pertains to the California Family Rights Act (CFRA), which is the California equivalent version of the federal Family Medical Leave Act.

As discussed in a previous article, “qualified workers” may take up to 12 weeks of unpaid leave for their own medical condition or the serious medical condition of a parent, spouse, domestic partner or child. However, the CFRA does not cover companies with 50 or less employees. In order to qualify, the employee must be with the company for at least 12 months and work at least 1,260 hours within the past 12 months. It does not appear that you are covered under the CFRA, since you started working at your company in February.

In any event, the PSLO provides coverage for all employees — even if you are part-time or temporary — regardless of the size of the employer, so long as you work in San Francisco at least two hours a week. There are two exceptions to the PSLO:

1. Employees who are covered by a collective bargaining agreement through their union if the union has agreed to waive the requirement.
2. Employers who already have a paid time off policy, in which employees can take paid leave for at least as many hours as the ordinance requires.
Employees accrue one hour of sick leave for every 30 hours worked. If your employer has 10 or more employees, you can accumulate up to nine work days (72 hours) of paid sick leave. If your employer has fewer than 10 employees, the maximum amount of paid sick time is five work days (40 hours). Under the new PSLO, employees start accruing sick leave on the first day of employment. You should have accrued paid sick leave since starting your part-time job in February, and the amount of paid sick leave available to you should have been listed on your paycheck or wage statement.

An employee may use paid sick leave to miss work not only for his or her own illness, injury or medical appointment for treatment or a checkup, but also to care for a parent, legal guardian, sibling, child, spouse, registered domestic partner or grandparent. Children and parents under this law include step, adopted and foster children and parents. If the employee does not have a spouse or registered domestic partner, he or she can also designate one additional person whose care requires you to use your sick leave.

An employee must provide their employer with “reasonable” notice regarding taking paid sick leave. For example, an employee cannot ask to take paid sick leave on the same day for a medical appointment scheduled weeks ahead of time. Here, your child was unexpectedly sick, and you notified your supervisor reasonably soon after you were aware and well before your next shift.

The law specifically provides that if you accumulate paid sick leave and take it for a valid reason, your employer cannot retaliate against you for doing so. Your performance review should not be affected for asserting your rights to sick leave under the law, because your employer cannot count your paid sick leave as an absence toward getting disciplined, demoted, suspended or terminated. If your employer retaliates against you for requesting or using a paid sick day, you can file a complaint with the California Labor Commissioner’s office or consult with a trial attorney to protect your rights.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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