New California Bill Seeks to Offer Paid Sick Leave for Behavioral Health Conditions

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

A new bill has been introduced in the California Assembly that could affect most employers and employees in the state. If passed in its current form, Assembly Bill (AB) 1844 would expand paid sick leave coverage to employees and their family members for behavioral health conditions.

The Current Law

Under the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code section 245 et seq.), employees who work in California for 30 or more days within one year are entitled to paid sick leave. There are several ways employers may provide paid sick leave: (1) a lump sum of 24 hours of leave to be made available at the beginning of each year, or (2) at an accrual at the rate of 1 hour for every 30 hours worked. The employer may cap accrual at 48 hours (or 6 days), and limit use of paid sick leave to 24 hours (or 3 days), whichever is greater, within a 12-month period.

Employees can use paid sick leave for the “[d]iagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.” Paid sick leave is also available for employees who are victims of domestic violence, sexual assault, or stalking.

What Would AB 1844 Require?

AB 1844 seeks to ensure that covered employees can use paid sick leave for the diagnosis, care, and treatment of behavioral health conditions, including mental illness, anxiety, depression, and substance use disorders. Some of the legislative findings recited in the bill include the following:

  • According to the U.S. Department of Health and Human Services, 20 percent of adults in the United States experience mental illness each year.
  • Over 19 percent of adults in the United States “experienced a co-occurring substance use disorder and mental illness in 2018.”
  • “Forty-one percent of Veterans Health Administration patients have a diagnosed mental illness or substance use disorder.”
  • “Only 43.3 percent of United States adults with mental illness received treatment in 2018.”

As such, the bill’s sponsors assert that “[t]he stigma associated with mental health is a common deterrent for seeking treatment”, and that AB 1844 will help to break down this stigma.

AB 1844 defines “behavioral health” to encompass “both mental and emotional well-being and substance use.” e. The bill also cites to a definition of mental illness to include “all diagnosable mental disorders—health conditions involving significant changes in thinking, emotion or behavior, and distress or problems functioning in social, work, or family activities.”

If passed, AB 1844 would ensure that covered employees are entitled to use available paid sick leave to seek treatment and care for the their own behavioral health conditions or for such conditions suffered by their family members. Under current law, family members include the employee’s child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling.

As such, the new bill may require paid sick leave for employees to attend individual and group therapy and counseling sessions, and substance abuse treatment and counseling. Likewise, employees may take paid leave to assist family members for similar treatment.

AB 1844 prohibits employers from denying employees the right to use accrued sick leave for behavioral health conditions or discriminating against employees who attempt to exercise or use such leave. The bill further creates “a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days” of any complaint to the California Labor Commissioner alleging a violation of the statute.

What Is the Status of AB 1844?

AB 1844 remains in committee and was last amended on May 11, 2020. Over the last several weeks, the federal government and several state, city, and county governments have passed emergency legislation providing supplemental paid sick leave for those impacted by the COVID-19 pandemic. With more attention given to paid sick leave initiatives across the country, we can expect a high level of interest in this legislation as well.

What Is the Takeaway?

Employers may want to consider taking this opportunity to review their current paid sick leave policies, including additional requirements mandated by local laws as well as the Families First Coronavirus Response Act. If AB 1844 passes in its current form, employers may want to consider the following steps:

  • Revise paid sick leave policies to expressly cover behavioral health conditions;
  • Train managers, supervisors, and leave specialists to understand this new qualification for paid sick leave and provide it accordingly;
  • Train management to safeguard the privacy of employee medical information relating to requests for paid sick leave; and
  • Train management to ensure that employees disclosing their need for treatment for behavioral health conditions does not result in harassment or discrimination in the workplace based on an actual or perceived disability.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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