California Establishes “Kin Care” Leave

As of January 1, 2000, employers in California who offer paid sick leave to their employees are required to allow those employees to use up to one-half of their yearly accrued sick leave to attend to a child, parent or spouse who is ill. This new law, embodied in California Labor Code §233, defines sick leave as accrued increments of compensated leave meant for an employee’s illness or injury, medical appointments or other medical needs. To avoid confusion with existing state and federal family leave laws, Labor Code §233 is called “kin care” leave.

If an employee needs to care for an ill family member, the employer must allow the employee to use accrued and available sick leave in an amount not less than what would be accrued and available as sick leave in six months of employment. Essentially, this means half an employee’s annual sick leave allotment, once it has actually accrued, may be used when an employee needs time off for kin care. For example, an employee who earns one week of sick leave per year could use two-and-a-half days to care for a child with measles, but only after he/she actually had earned those days. An employee who earns two weeks of sick leave per year could use one week of accrued leave for these “kin care” purposes.

As noted above, kin care is available to care for a child, parent or spouse. A “child” refers to a biological, foster or adopted child, a stepchild, a legal ward or a child of a person who acts in place of a parent; there is no requirement that the child still be a minor. A “parent” means a biological, foster or adoptive parent, stepparent or legal guardian; mothers-in-law, fathers-in-law and grandparents are not considered “parents” for purposes of Section 233. The term “spouse” is not defined by Section 233, but would presumably apply only to an employee’s legal spouse according to the laws of California.

Unlike the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), which apply only to employers with at least 50 employees, Labor Code §233 applies to all employers who offer compensated sick leave to their employees, including small employers. Section 233 also broadens existing employee leave rights in that it does not require that the employee’s family member have a “serious” illness.

The new law also contains various provisions intended to ease the impact on employers. First, employers who do not offer paid sick leave are not obligated to begin doing so under the new law, and nothing in the law prevents an employer from terminating or changing an existing sick leave plan. Second, an employer may limit the amount of kin care leave to half of the current year’s allotment of sick leave, regardless of any sick leave which was not taken the year before. Third, there is nothing in the new law which requires that the amount of days available for kin care carry over from year to year. Fourth, any conditions and restrictions an employer places on an employee’s use of sick leave are applicable to sick leave used for kin care. For example, if an employer requires a doctor’s note when an ill employee uses sick leave, a doctor’s note could be required from the pediatrician of the employee’s sick child. Finally, kin care does not extend the amount of leave available to the employee under the CFRA or the FMLA. For example, while the new law would permit an employee to utilize paid sick leave to care for an ill family member, the paid leave would merely be part of (and would not extend) the 12 weeks of otherwise unpaid FMLA or CFRA leave.

Labor Code §233 contains the usual array of notice, remedial, and no-retaliation provisions. California employers are required to include a description of kin care rights in their written sick leave policies. An employee who is denied the use of sick leave for kin care, or discriminated against in any way for using sick leave for kin care, can file a claim with the state labor commissioner or file a civil lawsuit against the employer. The aggrieved employee is entitled to reinstatement and actual damages or one day’s pay, whichever is greater, and appropriate equitable relief. If the employee files a civil action and prevails, the court may award reasonable attorney’s fees.