Under California law, an employer generally cannot deny an employee the right to use accrued paid sick days. The state’s Healthy Workplaces, Healthy Families Act — codified at California Labor Code sections 245 through 249 — prohibits employers from denying, interfering with, or retaliating against an employee’s exercise of the right to use accrued sick leave. That prohibition applies regardless of the reason the employer gives for the denial.
There are narrow exceptions, timing requirements, and accrual rules that determine when and how much sick time is available. Understanding the full framework is what separates a lawful employer limitation from an unlawful denial.
Key Takeaways
- California Labor Code section 246.5(c) explicitly prohibits employers from denying an employee the right to use accrued sick days and from retaliating against an employee for attempting to use them
- As of January 1, 2024, Senate Bill 616 increased the minimum paid sick leave entitlement to 40 hours or five days per year — whichever is greater — up from the prior 24 hours or three days
- Employers may impose reasonable notice requirements and cap annual use at 40 hours, but cannot deny sick leave on grounds such as lack of shift coverage or inability to find a replacement worker
What California Law Actually Prohibits
California Labor Code section 246.5(c) states that an employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days or attempting to exercise that right.
The statute also creates a rebuttable presumption of unlawful retaliation when an employer takes adverse action against an employee within 30 days of the employee filing a complaint with the Labor Commissioner, cooperating in an investigation, or opposing a prohibited practice. In practical terms, if an employer denies sick leave and disciplines the employee in quick succession, the burden shifts to the employer to prove the actions were unrelated.
One provision that surprises many employees and employers alike: Labor Code section 246.5(b) explicitly states that an employer cannot require, as a condition of using paid sick days, that the employee search for or find a replacement worker to cover their shift. That rationale — “we don’t have anyone to cover you” — is not a lawful basis for denial in California.
The 2024 Expansion: What Changed Under SB 616
Before January 1, 2024, California employers were required to provide at least 24 hours or three days of paid sick leave per year. Senate Bill 616, signed by Governor Newsom in October 2023, amended California Labor Code sections 245.5, 246, and 246.5 to raise that floor significantly.
Starting January 1, 2024, employers must generally provide and allow employees to use at least 40 hours or five days of paid sick leave per year, whichever is greater. The “whichever is greater” language matters: an employee who works 10-hour shifts is entitled to 50 hours of sick time (five 10-hour days), not just 40 hours.
SB 616 also extended the anti-retaliation and anti-denial protections of Labor Code section 246.5 to employees covered by qualifying collective bargaining agreements — a category that had previously been partially exempt from those specific protections.
Who Qualifies for Paid Sick Leave in California
Most California employees qualify, but the entitlement is not immediate and is not unlimited. The general eligibility requirements under Labor Code section 246 are:
30-day employment threshold: An employee must work at least 30 days for the same employer within a year in California to be entitled to paid sick leave. This covers full-time, part-time, per diem, temporary, and in-home supportive services employees.
90-day employment period before use: Even after the 30-day threshold triggers accrual, an employee must satisfy a 90-day employment period before actually taking any paid sick leave. Accrual begins on day one of employment, but use cannot begin until day 91 unless the employer’s policy is more generous.
Narrow exemptions: A few categories of workers are exempt from the Healthy Workplaces, Healthy Families Act, including certain employees covered by qualifying collective bargaining agreements (which have their own minimum requirements), certain airline employees covered by the Federal Railroad Unemployment Insurance Act, and certain retired annuitants employed by government agencies.
How Accrual Works — and What Employers Can Cap
California law gives employers flexibility in how they structure sick leave accrual, within statutory minimums.
Statutory accrual method: Employees accrue one hour of paid sick leave for every 30 hours worked, beginning on the first day of employment. Both regular and overtime hours count toward accrual. Under this method, employees may accrue more than the five-day minimum — but employers are permitted to cap total accrual at 80 hours or ten days.
Lump-sum (upfront) method: An employer may alternatively provide the full amount of sick leave at the beginning of a leave year rather than accruing it incrementally. Under an upfront policy, the leave does not carry over from year to year because the full amount is refreshed each year.
Annual use cap: Even under an accrual policy, an employer may limit the amount of sick leave an employee can actually use to 40 hours or five days per year. Accrual can continue beyond that cap, but use is capped at the statutory minimum. Accrued unused time carries over into the next year unless the employer uses the lump-sum method.
Minimum increment: Employers may require sick leave to be taken in minimum increments, but that minimum cannot exceed two hours per day.
What Employers Can Lawfully Do
A denial is not automatically unlawful. California law permits employers to do several things that might feel like restrictions but fall within lawful employer discretion.
Require reasonable advance notice for foreseeable leave: If the need for sick leave is foreseeable — a scheduled medical procedure, for example — the employer may require reasonable advance notice. The statute does not define “reasonable,” but contemporaneous guidance from the California Labor Commissioner’s office indicates that employers must apply their notice requirements consistently and not use them as a pretext for denial.
Require notice as soon as practicable for unforeseeable leave: When an illness is sudden, the employee is required to provide notice as soon as practicable, not necessarily before the shift starts. An employer cannot require prior advance notice as a condition of unforeseeable sick leave.
Deny leave not yet accrued: If an employee requests more sick time than they have accrued, the employer may deny the unearned portion — though the employer may choose to advance sick leave at its discretion under Labor Code section 246(h).
Require documentation in limited circumstances: California law does not generally authorize employers to require a doctor’s note as a condition of using accrued sick leave for short absences. Local ordinances and employer policies vary, but a blanket requirement for medical documentation for any use of sick time is generally inconsistent with the statute’s design.
What Employers Cannot Do
Beyond the direct prohibition on denial, Labor Code section 246.5 prohibits a range of related conduct:
Employers cannot require employees to find replacement workers as a condition of using sick leave. Employers cannot discharge, demote, suspend, or otherwise discriminate against an employee for using or attempting to use accrued sick days. They cannot retaliate against an employee for filing a complaint with the Labor Commissioner, cooperating in an investigation, or opposing any practice prohibited by the statute.
Policies that conflict with Labor Code section 246.5 after January 1, 2024 are void and unlawful — the California Labor Commissioner has stated explicitly that any continued enforcement of such policies constitutes a violation of the law.
Local Ordinances That May Provide Additional Protection
Several California cities and counties have enacted paid sick leave ordinances that go beyond the state minimum. San Francisco’s paid sick leave ordinance, Los Angeles’s Minimum Wage Ordinance, Long Beach, Oakland, San Diego, and several other jurisdictions have local requirements that may provide more sick leave, different accrual rates, or broader coverage than the state law.
Where a local ordinance provides greater protections than the state law, the local ordinance governs. Where state law was amended by SB 616 to address specific issues — including the lending of paid sick leave, paystub statements, timing of payment, and calculation of leave — the state law now preempts local ordinances that contradict it on those specific points.
How to File a Complaint if Sick Leave Is Denied
An employee whose sick leave has been unlawfully denied may file a claim with the California Labor Commissioner’s Office (also known as the Division of Labor Standards Enforcement, or DLSE). The Labor Commissioner investigates claims, may order reinstatement of the denied sick leave, and has authority to impose civil penalties on employers who violate the statute.
Civil penalties for violation of the Healthy Workplaces, Healthy Families Act include $50 to $4,000 per violation, plus any unlawfully denied sick pay, attorney’s fees, and costs. The rebuttable presumption of retaliation that attaches when adverse action follows protected activity within 30 days gives employees meaningful procedural leverage when a retaliation claim accompanies a denial claim.
For employees who also believe the sick leave denial was connected to a broader workplace retaliation situation — particularly in circumstances involving an OSHA complaint, a wage complaint, or protected activity — how to file an OSHA complaint without fear of workplace retaliation covers the retaliation complaint process that operates in parallel with the Labor Commissioner process.
And for employees at California employers who have denied sick leave and then terminated the employee, can at-will employees sue for wrongful termination addresses the intersection between at-will employment and statutory retaliation protections.
FAQ
Can an employer deny sick leave if they claim they are short-staffed? No. Under California Labor Code section 246.5(b), an employer cannot require an employee to find a replacement worker as a condition of using paid sick days, and denial based on staffing levels is unlawful under the Healthy Workplaces, Healthy Families Act.
Can an employer require a doctor’s note before approving sick leave? California law does not include a general authorization for employers to require medical documentation for routine use of accrued paid sick days. Some employer policies impose this requirement, and its enforceability depends on how it is applied and whether it functions as a pretext for denial. Local ordinances may also address documentation requirements separately.
Does sick leave apply during the first 90 days of employment? Accrual begins on the first day of employment, but an employee generally cannot use accrued sick leave until after the 90-day employment period has been satisfied. An employer may, at its discretion, advance sick leave before the 90-day period.
What if an employer has a PTO policy instead of a dedicated sick leave policy? An employer’s PTO policy can satisfy California’s paid sick leave requirements if the PTO policy meets or exceeds the accrual, carryover, and use requirements of the Healthy Workplaces, Healthy Families Act. The employer cannot impose conditions on PTO taken for sick leave reasons that are more restrictive than the conditions the statute permits.
Can an employer discipline an employee for calling in sick? An employer may have legitimate attendance policies, but disciplining an employee specifically for using accrued sick leave is prohibited under Labor Code section 246.5(c). If the discipline follows protected sick leave use within 30 days of a complaint to the Labor Commissioner, a rebuttable presumption of unlawful retaliation attaches.
Are part-time and temporary employees covered? Yes. The Healthy Workplaces, Healthy Families Act covers full-time, part-time, per diem, and temporary employees who work at least 30 days for the same employer within a year in California.
Is there a statute of limitations for filing a sick leave complaint? Claims under the Healthy Workplaces, Healthy Families Act are generally subject to a three-year statute of limitations for filing with the Labor Commissioner. A licensed employment attorney can advise on whether specific facts affect the applicable limitations period.
Conclusion
California employers generally cannot deny sick leave once an employee has accrued it and satisfied the 90-day employment period. The Healthy Workplaces, Healthy Families Act, as expanded by SB 616 effective January 1, 2024, provides a minimum of 40 hours or five days of paid sick leave per year, prohibits denial and retaliation in explicit terms, and makes policies that violate those prohibitions void and unlawful. Lawful employer actions — requiring reasonable advance notice for foreseeable leave, capping annual use at 40 hours, denying leave not yet accrued — are distinct from the unlawful denial of leave that has been earned and timely requested. Employees who believe their sick leave rights have been violated have a clear administrative path through the California Labor Commissioner’s Office.
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