California Labor Code 246 Overview & Example Scenarios
Legally reviewed by: Jessica Anvar Stotz, JD, MBA
California Labor Code 246 is a very important piece of California labor law that lays out employee sick leave. It includes terms on when the employee can use their sick leave, how fast the sick leave must accrue at a minimum, how much sick leave an employee can earn in a year, and more.
California Labor Code 246 Explained in 90 Seconds
The first sections of California Labor Code 246 state that all employees in California who work for 30 days or more under the same employer are entitled to sick leave. Sick leave must be accrued at a rate of at least one hour per 30 hours worked. Special case employees, like those working in administrative, executive, or professional fields, are deemed to have a 40-hour work week for accrual purposes.
Under California Labor Code 246, employers can change the accrual method as long as the employee eventually has 24 hours of paid sick leave by the 120th day of employment, the 120th day of the calendar year, or in each 12-month period.
Accrued sick days stay across years of employment, but employers can limit their use to 24 hours or three sick days in each year of employment. If an employer has some other paid time off system, California Labor Code 246 recognizes it so long as it abides by the same accrual rules as normal.
Employees cannot use sick days until they have worked for their employer for 90 days, after which they can be used as they are accrued. Employees can use sick days in advance if approved by their employer to do so. Employers can also set minimum numbers of sick leave hours that must be used at once, but the number can’t be higher than two hours. Employees must provide notice of their intention to use sick leave if it is foreseeable; if not, they must tell their employer as soon as reasonably possible.
Who Qualifies for Paid Sick Leave under Labor Code 246?
California Labor Code 246 applies to most employees in California, provided they have been working for the same employer for 30 days within a year of their start date. There are some edge cases, such as employees who work in in-home supportive services. These employees receive eight, sixteen, or twenty-four hours depending on the minimum wage in the state of California. Since the minimum wage has since hit the threshold for twenty-four hours of paid sick leave, in-home supportive services employees receive that many hours per year of employment.
Independent contractors in California do not receive sick leave through California Labor Code 246. These workers are considered responsible for their own schedules, including things like sick leave, so California labor laws do not provide for them.
How Much Paid Sick Leave Do I Earn?
Employees accrue sick leave hours over the course of their employment at a rate of one sick leave hour for every 30 hours worked. Employers can have alternate schemes set up for accrual so long as employees end up with 24 hours of accrued sick leave by the 120th calendar day of employment, each calendar year, or in each 12-month period.
Generally, the annual cap on sick leave is 24 hours or three paid days, whichever is greater.
How Can I Use My Paid Sick Leave?
Employees can use their paid sick leave in a number of ways under California Labor Code 246. First, they can use them to seek diagnosis, care, or treatment for their own health condition. They can also use the hours for preventive care. Sick leave hours may also be used for the care of a family member suffering from a health condition. “Family member” includes children, spouses, parents, domestic partners, grandchildren, and siblings. Finally, victims of domestic or sexual assault, as well as stalking, can use their paid sick days for safety or legal reasons related to the event they are experiencing or have experienced.
When Do I Need to Notify My Employer About Using Sick Leave?
Whether an employee has to notify their employer about using sick leave depends on how foreseeable the event requiring the employee to take leave is. If the need for leave is foreseeable, the employee must provide advance notice a reasonable amount of time before taking the leave. What “reasonable” is will likely depend on the position, its responsibilities, and how available cover is. If their need for leave is sudden (not foreseeable), the employee must notify the employer as soon as possible.
Employees should be aware of their employer’s specific notification policies for using sick leave, as they can vary. Being aware of these policies will help an employee exercising their rights to sick leave move through the process as smoothly as possible.
What Happens if I Don’t Get Paid Sick Leave?
Employers can face consequences for failing or refusing to provide their employees with paid sick leave. For example, upon separation between the employer and employee, the employee might be eligible to receive “sick leave pay.” This pay converts the hours of paid sick leave the employee should have earned to cash, which the employee then receives. Employees can also file a wage claim with the Division of Labor Enforcement Standards (DLSE) against their employer.
Example Scenarios
Example 1: Employee Uses Sick Leave, Provides Reasonable Notice
- Scenario: A fast-food employee knows she will be undergoing leg surgery in two weeks and provides notice to her employer that she will be using sick leave to cover the two days after so she can recover. After the surgery, her employer claims she did not provide notice and refuses to let her take sick leave.
- Violation: Improper refusal to use sick leave with notice provided.
- How Labor Code 246 Protects: Labor Code 246 provides that employees must give reasonable notice if the reason for their sick leave is foreseeable. In this case, the employee did so, but the employer refused to recognize it. The employee here would prevail since notice was properly given.
Example 2: Employer Changes Accrual Scheme, New Scheme Results in Fewer than 24 Hours
- Scenario: A bank changes its paid sick leave accrual scheme such that employees now receive only 20 hours of paid sick leave per 12-month period.
- Violation: Improper accrual scheme of less than 24 hours per 12-month period.
- How Labor Code 246 Protects: According to Labor Code 246, an employer can modify the paid leave accrual scheme so long as the alternate scheme provides 24 hours of sick leave in each 12-month period. Since this is not the case here, the new scheme would not be proper.
Example 3: Employee Tries to Use Sick Leave Before 90 Days of Employment
- Scenario: A car mechanic has been working at a bodyshop for 60 days and tries to use his accrued sick leave. His employer prevents him from doing so because he has not been employed for 90 days.
- Violation: No violation; employees must have been employed for 90 days before they can begin to use their sick leave.
- How Labor Code 246 Protects: For an employee to use their accrued sick days, they must have worked for 90 days under the employer. Because the car mechanic in this case had not done so, he is not eligible to use his sick days yet.
It is important to note that the above are just examples for the sake of demonstration and do not constitute legal advice for any situation similar to the ones described.
Keeping Track of Your Hours and Leave
As an employee, it is always a good idea to keep track of your hours worked and maintain an understanding of your employer’s policies regarding sick leave and its accrual. Doing both of these things together should provide a good idea of how many sick hours are available to you, though your employer should provide this information on request either way. Notice is especially important for employees to take note of, as it is easy to provide but can add complications if it is absent.
Resources for Employers and Employees
- California Labor Code 246
- California Department of Industrial Relations
- California Department of Industrial Regulations – California Paid Sick Leave FAQ
- California Department of Industrial Regulations – Division of Labor Standards Enforcement
- California Department of Industrial Regulations – Division of Labor Standards Enforcement: File a Wage Claim
Connect with an Attorney
Knowing your rights as a worker in California is very important, but California labor law can be confusing to parse and fully understand. This is where an experienced employment attorney comes in: if you are an employee who has had paid sick leave withheld from them or was not permitted to use your properly accrued sick leave, you may have a claim against your employer. LawLinq can help connect you with a skilled employment attorney who can assist you in best understanding your case and get you the compensation you deserve. Contact us today by phone at (855) 997-2588 or online by filling out an online form today!
