Mar 4

Paid Sick Leave in Santa Monica: It’s Accrual World


Santa Monica residents make people sick – literally. Increasingly refusing vaccines, Santa Monica residents are spreading the flu and measles faster than grease through a goose. Fortunately, Santa Monica’s new paid sick leave ordinance is just what the doctor ordered. The new ordinance goes further than California’s paid sick leave law by entitling an employee to accrue up to nine paid sick days per year if he works as little as two hours in a particular week in Santa Monica. Moreover, he can use as much or as little paid sick leave as he wants. But a Santa Monica employee better use it or lose it.

I. How Much Paid Sick Leave Can a Santa Monica Employee Bank?

Like California’s paid sick leave law, Santa Monica’s paid sick leave ordinance provides that any employee who works at least two hours of work in Santa Monica will accrue one hour of paid sick leave for every 30 hours of work.1 For a full-time employee, that’s about 69.3 hours, or 8.7 days, of accruable paid sick leave per year – enough time to get over the measles and still have time left in the bank. Even better, any paid sick leave that an employee accrues but doesn’t use will carry over into the next year.2 That means an employee can accrue more than 69.3 hours/8.7 days of paid sick leave during his employment.

But both the California and Santa Monica laws allow an employer to cap the amount of paid sick leave that an employee can bank during his employment. The Santa Monica ordinance, however, goes further when an employer has at least 26 “Santa Monica” employees. Whereas California law allows an employer to cap accruable paid sick leave at 48 hours, the Santa Monica ordinance only allows an employer with 26 Santa Monica employees to cap it at 72 hours.3 Thus, a Santa Monica employee can bank up to nine full days of paid sick leave per year during his employment.

That said, whoever drafted the Santa Monica ordinance apparently didn’t read the California law very closely. The ordinance unwittingly limits employees’ rights in two respects. First, an employer who has 25 or fewer Santa Monica employees can cap accruable paid sick leave at 40 hours – eight fewer than under California law.4 Second, the Santa Monica ordinance entitles an employee who starts work after the operative date of the ordinance to begin accruing paid sick leave only after 90 days on the job.5 In contrast, California law allows an employee to begin accruing paid sick leave immediately upon hire.

Santa Monica employees who work for small employers need not fret. The Santa Monica ordinance doesn’t “preempt, limit, or otherwise affect the applicability of any other law, regulation, policy, or standard that provides for separate or greater accrual or use” of paid (or unpaid) sick leave.6 Thus, any Santa Monica employee who works for an employer with at least 26 Santa Monica employees will begin accruing paid sick leave immediately upon hire and will accrue at least 48 hours of paid sick leave per year, regardless of what the ordinance says.

II. How and Why Can a Santa Monica Employee Use Paid Sick Leave?

Like California law, the Santa Monica ordinance allow an employee to begin using paid sick leave after the first 90 days of employment or consistent with his employer’s policies, whichever is sooner. But Santa Monica again goes further than California in two ways. First, California allows an employer to limit the annual use of paid sick leave to 24 hours or three days. Santa Monica has no limits. Second, California requires an employee to “reasonably” notify his employer in advance of a foreseeable absence or “as soon as practicable” of an unforeseeable one.7 Santa Monica provides that an employer “may require” reasonable notice.8

The exact reasons for a Santa Monica employee’s use of paid sick leave isn’t crystal clear. The Santa Monica ordinance only entitles him to use paid sick leave “consistent with State sick leave laws.”9 Presumably, that means he can use paid sick leave for only two reasons. First, he can use it for the “diagnosis, care, or treatment” of an existing health condition of, or “preventive care” for, the employee or his family member.10 The “family member” can be a parent, stepparent, legal guardian, grandparent, grandchild, sibling, spouse, or even a spouse’s parent, stepparent, or legal guardian – pretty much anyone but an aunt, uncle, or cousin.11

Second, an employee who is a victim of domestic violence, sexual assault, or stalking can use paid sick days to “obtain or attempt to obtain” any relief, including a temporary restraining order, restraining order, or other injunctive relief, to help ensure her or her child’s health, safety, or welfare. Similarly, she can use paid sick days to: (1) seek medical attention for her injuries, services from a domestic violence shelter or rape crisis center, or psychological counseling; or (2) participate in “safety planning” and take any other actions (including relocation) to increase her safety from future domestic violence, sexual assault, or stalking.

III. Can a Cashiered Santa Monica Employee Cash Out Paid Sick Leave?

The Santa Monica ordinance doesn’t say anything about dollars and cents. California law thus fills in the gaps. Under California law, an employer must pay an employee for any paid sick leave he uses no later than the payday for the next payroll period.12 For each hour of sick leave that he uses, his employer must pay him an amount equal to his hourly rate.13 If the employee receives a commission, piece rate, or other variable wage, or he’s a non-exempt salaried employee, he can calculate his rate of pay by dividing his total wages (excluding any overtime pay) by the total hours he worked during the preceding 90 days.14

Unfortunately, neither the California law nor the Santa Monica ordinance entitle an employee to cash when his employer has cashiered him. The employer need not pay an employee for any accrued but unused paid sick leave upon his termination, resignation, retirement, or other separation from employment.15 That means a “use it or lose it” policy is permissible. California law makes a narrow exception to that rule when an employer rehires an employee within one year from the date of separation.16 In that case, the employer must reinstate any paid sick leave that the employee previously accrued but didn’t use.17

  1. SMMC §4.62.025(b). 

  2. Id

  3. SMMC §4.62.025(b)(1). 

  4. SMMC §4.62.025(b)(2). 

  5. SMMC §4.62.025(a). 

  6. SMMC §4.62.025(h). 

  7. Lab. Code §246(h)(1). 

  8. SMMC §4.62.025(g). 

  9. SMMC §4.62.025(c). 

  10. Lab. Code §246.5(a)(1). 

  11. Lab. Code §246.5(c). 

  12. Lab. Code §246(m). 

  13. Lab. Code §246(k). 

  14. Id

  15. Lab. Code §246(f)(1); SMMC §4.62.025(e). 

  16. Lab. Code §246(f)(2). 

  17. Id

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.