The answer to whether an employee can be written up for calling in sick in California is complex. While employers cannot legally discipline an employee for using accrued and protected sick leave, discipline related to an absence is permissible under specific circumstances. California labor laws establish a minimum level of protected time off, but an employee’s behavior or the exhaustion of available time can create grounds for a written warning or other disciplinary action. Understanding the distinction between protected use and unprotected circumstances is necessary for both employees and employers.
The Foundation of Protected Sick Leave
California law provides a legal basis for protected time off through the Healthy Workplaces, Healthy Families Act. This law requires employers to provide paid sick leave to most employees who work for the same employer for at least 30 days within a year. Eligible employees begin accruing sick leave on their first day of employment at a rate of at least one hour for every 30 hours worked, and they can use the time after 90 days of employment.
Starting in 2024, employers must provide and allow employees to use at least 40 hours or five days of paid sick leave per year, whichever is greater. This time can be used for the diagnosis, care, or treatment of an existing health condition, or for preventive care for the employee or an employee’s family member. It can also be used if the employee or a family member is a victim of domestic violence, sexual assault, or stalking.
Disciplinary Action and Illegal Retaliation
California law explicitly prohibits an employer from taking adverse action against an employee for using their accrued sick time. Labor Code sections forbid an employer from discharging, demoting, or suspending an employee for using or attempting to use protected sick days. Using an accrued sick day is a protected right, and an employer cannot implement an attendance control policy that counts a protected absence as a demerit or “occurrence” leading to discipline.
Any written warning, reduction in pay, or denial of a bonus or promotion specifically because an employee utilized protected sick time is considered illegal retaliation. Furthermore, an employer cannot require an employee to find a replacement worker as a condition for taking paid sick leave. A rebuttable presumption of unlawful retaliation exists if the employer takes any adverse action against the employee within 30 days of the employee exercising their rights.
Valid Employer Requirements for Using Sick Time
While the use of accrued sick time is protected, employees still have responsibilities regarding notification. If the absence is foreseeable, such as a scheduled doctor’s appointment, the employer can require reasonable advance notice. When the need for leave is unforeseen, the employee must provide notice to the employer as soon as it is practicable.
Employers are limited in their ability to request medical documentation for routine sick days. Verification can typically only be requested after an employee has been absent for more than three consecutive workdays. An employer cannot require documentation to verify the specific reason for a routine sick day, as this is viewed as potentially interfering with the employee’s right to use protected leave.
Situations Where Discipline Is Permitted
Discipline is permissible only when the absence is not protected under the law. An employer can legally issue a written warning if the employee has exhausted all of their accrued sick leave. For example, if an employee has used all 40 hours of protected time, a subsequent absence can be counted against them under a company’s attendance policy.
Disciplinary action is also appropriate when an employee engages in misconduct or fraud related to the absence, such as lying about the reason for calling in sick. Additionally, if an employee fails to follow the employer’s reasonable notice procedures for an unforeseen absence, and the absence was not due to an emergency, the employer may issue a written warning.
Steps to Take If You Are Wrongfully Disciplined
If an employee believes they were disciplined specifically for using accrued and protected sick leave, immediate action is advised. The employee should document everything, including the date sick leave was requested, the date of the disciplinary action, and any statements made by management. Challenging the written warning internally through the employer’s human resources or management structure is a necessary initial step.
For external recourse, the California Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), enforces the state’s paid sick leave law. An employee can file a retaliation complaint with the DLSE, which will investigate the alleged violation. This office has the authority to award remedies such as reinstatement, backpay, and payment for any withheld sick days.