Less than 2 weeks after California’s mandatory sick leave law went into effect, California significantly amended the law, effective immediately.

California employers had been forced, in some cases kicking and screaming, to institute new policies or twist their current policies into the unforgiving framework of the new law by July 1, 2015. The uproar was apparently heard, and the sick leave law was amended this week to address some of the criticism.

Many employers had policies in effect that would meet the intent of the law, but not the letter of the law. The statutory accrual rate of one hour for every 30 hours worked had to be used, or the paid sick leave had to be front loaded by granting employees 24 hours or 3 days of paid leave each year of employment, calendar year or on a 12-month basis. With Assembly Bill 304, an employer’s sick leave or paid time off policies available to a class of employees prior to January 1, 2015 will satisfy the law, regardless of the accrual method or rate they use, if at least one day or 8 hours of sick leave or paid time off is earned within 3 months of employment and employees are eligible to earn at least 3 days or 24 hours within 9 months of employment.

However, it’s important to keep in mind that all employees, not just those who are full-time, must receive paid sick leave. If a class of employees isn’t covered by the prior policy, employers can provide paid sick leave by following certain rules for new policies. The amendment also effectively states that any change to the accrual method in existing policies must only be to increase accrual, or the employer must adopt the statutory accrual rate of one hour for every 30 hours worked, or 3 days or 24 hours must be available for the employee to use by the 120th calendar day of employment, or in each calendar year or 12-month period. In all cases, an employee is entitled to use any accrued paid sick days by the 90th day of employment.

For new sick leave policies, the law has also changed. A non-statutory accrual rate can be used if accrual is on a regular basis and employees accrue at least 24 hours of sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period. Employers can still opt to front load sick leave, but no longer have to make it available at the beginning of a 12 month period, as long as 24 hours of sick leave is available by the 120th calendar day of employment. However, if not available at the beginning of a 12-month period, carry-over requirements apply, so that up to 6 days or 48 hours must carry over to the next year. Whatever the accrual rate, use of sick leave can still be limited to as few as 3 days or 24 hours.

AB 304 also clarifies the paid sick leave payment calculations. Employers no longer are limited to using the last 90 days to calculate sick pay if an employee had different rates, received commissions or piece rate, or is a salaried non-exempt employee. For all non-exempt workers, including those with differing rates, on a commission or piece rate, or on salary, sick pay can be calculated in one of 2 ways:

• In the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
• By dividing the employee’s total wages, not including overtime pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

The amendment also gives guidance for calculating sick pay for exempt workers by providing that sick leave is calculated in the same manner as the employer calculates wages for other forms of paid leave time, such as vacation. For accrual purposes, exempt workers are still deemed to work 40 hours per workweek, unless the employee’s normal workweek is less than 40 hours, in which case the lesser number would be used.

There are other notable clarifications: if an employer provides unlimited sick leave or paid time off, reporting requirements can be satisfied by indicating “unlimited” on pay stubs. AB 304 also clarifies that the paid sick leave requirements apply to employees who work 30 or more days within a year in California for the same employer.

Lastly, in a gift to employers in the broadcasting and motion picture industries, these employers need not provide written notice each pay day of available sick leave until January 21, 2016.