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DLSE Issues FAQs on Paid Sick Leave Use

The Division of Labor Standards Enforcement is the agency charged with enforcing the new Paid Sick Leave (PSL) mandate, which takes full effect on July 1. DLSE has posted Frequently Asked Questions (FAQs) as a means of interpreting some parts of the PSL law that have been subject to differing understandings. You can view the entire FAQs page here.

One new FAQ addresses the amount of PSL an employee on an alternative work schedule may use. The FAQ involves an employee normally scheduled to work four 10-hour days each workweek. How many hours of PSL is that employee entitled to use? The response offers some guidance for agricultural employers whose employees sometimes work irregular schedules:

"The paid sick leave law allows the employee to decide how much leave time to take, subject to the employer's ability to set a two-hour minimum. Therefore, if you have ten hours in your bank, you can request to be paid for ten hours....[I]f you have accrued 30 hours, then because the minimum requirements of the statute are 3 days or 24 hours, you will have to be paid for 30 hours." (Italics added.)

Another FAQ addresses the situation of an employee who works part-time, six hours per day:

"If I work part time, six hours per day and I have accrued 24 hours or three days and I take three paid sick days, can my employer refuse to allow me to talk any more sick time in that same year?"

DLSE's answer?

"No. Because the statute provides that an employer may limit the amount of sick leave to 24 hours or three days, and because you work 6 hours per day, you have only used 18 of your 24 hours. For enforcement purposes, DLSE interprets the reference to 'three days' to state an equivalent of 24 hours (based on an 8-hour workday) and is not a limitation that can be used to prohibit a part-time employee from using at least 24 hours of accrued leave in a year. Therefore, the minimum amount that you have to be allowed to take cannot fall below 24 hours. In this situation, you still have 6 hours left to take and be paid for during the year." (Italics added.)

As DLSE asserts that "days" and "hours" are separate concepts for the purpose of PSL use, in the case of this employee, a "day" consists of six hours -- which is the amount of hours of PSL that the employee may claim on a day when he or she otherwise would have worked six hours.

Under that logic, an employee who works an irregular schedule could claim PSL only in the amount the employee would have otherwise worked on the day the in question -- be it four hours, six hours, or 10 hours. In that situation the meaning of the word "day" is tied to the employee's intended schedule for that "day."

In other words, it seems that an employee may use PSL to cover only as many hours as the employee would have otherwise worked on that day.