New Berkeley Sick Leave Ordinance means multiple sick leave laws for employers

City of Berkeley Sick Leave Ordinance
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The City of Berkeley just passed a sick leave ordinance, or did they?

Berkeley California just became the latest of California cities to pass a sick leave ordinance.  This is despite the fact that California already has a statewide Sick Leave law. The new law is set to take effect Oct 1, 2017. That is unless voters overturn the law or enact one of two other laws on the ballot this November. The Berkeley Sick Leave Ordinance mirrors many aspects of state law, but with a few key differences. Berkeley law applies to all businesses who hold a Berkeley city business license.

Update: For an update on the Berkeley City Minimum Wage and Paid Sick Leave Ordinance click here. 

Berkeley sick leave accrual rates

Like the state law, Berkeley employees accrue sick leave at 1 hour of sick pay for every 30 hours worked.  Unlike state law, which allows employers to cap leave at 24 or 48 hours, the Berkeley sick leave ordinance only allows capping at 72 hours each year. Small businesses with fewer than 25 employees can cap sick leave to 48 hours a year. It also allows employees to roll all accrued and unused sick leave from year to year. Any employee who works in the city of Berkeley for 2 hours a week is covered under the new ordinance.

Exceptions to sick leave use

Unlike California sick leave law, the Berkeley sick leave ordinance does not allow for leave to be used for domestic violence, stalking or sexual assault. Employees who need to use sick leave for these things must rely on the state law. The Berkeley ordinance allows for employees to use sick leave for themselves or a family member for diagnosis, treatment or medical care.

Documentation allowed through sick leave law

It also requires employees to give advanced notice if the need for sick leave is foreseeable. If it is not foreseeable, then the employee must notify the employer as soon as they are aware of the need. Additionally, and unlike state law, the Berkeley law allows for employers to request reasonable documentation that the sick leave was used for the intended purposes. Employers may request documentation but cannot require any documentation that would cost the employee more than $15 to obtain.

Paid Time Off

Like state law, Berkeley’s law allows for Paid Time Off (PTO) to qualify as meeting required sick leave. This occurs if the employee can take PTO in accordance with Berkeley sick leave requirements. In other words, the employer can’t place additional restrictions on the PTO. If they do, the PTO won’t count as meeting sick leave requirements.

Employer notice

Employers are required to notify and post sick leave ordinance rules in the workplace. Businesses may face a find of $500 for failing to post and notify employees of the new law.

Also similar to the California law, the Berkeley sick leave ordinance provides protection to employees who are seeking redress. It also protects employees who complain of an employer’s failure to comply with the law. It also prohibits retaliation on employees who use their sick leave for any of the approved reasons. Additionally, employees represented by a union agreement can opt out of sick leave. The agreement must have specific verbiage opting out.

Pending Legislation regarding sick leave law

Currently, two sick leave laws are on the ballot for November 1. Either law could overturn the new sick leave ordinance or amend it. One proposed law allows fewer earned hours of sick leave per year. It also proposes a similar minimum wage hike as the new Berkeley ordinance raise hike. The second proposed law is stricter on sick leave and would provide 72 hours of sick leave for companies of 10 employees or more.

Next Step for Employers in the City of Berkeley

Employers in the City of Berkeley should wait to review sick leave laws and policy until after the November election is completed

Written by Annemaria Duran. Last updated October 25, 2016

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