This suggests that employers who provide a more generous amount of paid sick leave cannot require a doctor’s certification for an employee’s use of Protected Sick Leave. The primary purpose of this law is to prevent an employer’s intentional or erroneous designation of an employee’s usage of sick days as kin care, thus depleting kin care leave. Section 233 of the California Labor Code is often referred to as kin care. This is provided for in Labor Code section 233(a), which states in part: All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner. Sick Leave (“PSL”) law, which went into full effect on July 1, 2015. Therefore, absent further clarification from the Labor Commissioner, employers should allow an employee to use up to one-half of their annual sick leave/PTO for a covered sick leave purpose without requesting a doctor’s note. Beginning January 1, 2016, SB 579 modifies Labor Code section 230.8 as follows: The other provisions of Labor Code section 230.8 generally remain intact. One of these, AB 2017, merely added a single sentence to existing Labor Code § 233, but that single sentence still merits attention as it explicitly gives the employee the sole right to designate the type of sick leave they are taking. does … The covered employee is only allowed to take up to 40 hours per year of such leave in a year. June 27, 2008. For most employers, the major impact of SB 579 will be on existing sick leave/PTO, Kin Care leave, and Child-Related Activities policies and practices. The only exception to this appears to be for the use of paid sick leave for victims of domestic violence, sexual assault, or stalking as the Paid Sick Leave law references Labor Code sections 230 and 230.1, which do allow an employer to request certification for unscheduled absences. The statute defines "sick leave" as "accrued increments … Employee: sick leave: kin care. Under the California Kin Care law implemented in 1999, employers that offer accrued sick leave to workers must allow employees to use up to half their annual total to care for a spouse, child, parent or domestic partner who is ill. Then as now, there is no requirement under the law that any California employer must provide sick leave to employees. “Parent” is now defined to include a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child. Rather, it took the more dramatic step of applying the protections of Kin Care leave beyond caring for a family member to any sick leave taken for the reasons provided under the Paid Sick Leave Law. The end result of reading the current Paid Sick Leave law and Kin Care obligations together is that an employee’s use of covered paid sick leave to care for a family member pursuant to the Paid Sick Leave law does not necessarily count towards the employee’s Kin Care entitlement – rather, it will depend on which family member the employee is caring for. AB 2017: California Employees Hold the Sole Right to Designate Kin Care Leave, Can Employers Require COVID-19 Vaccinations? California Revises “Kin Care” Law in Light of Paid Sick Leave Requirements. Here are some practical steps that can be taken to prepare for these changes to the law: Similar to the Paid Sick Leave Law, there are many areas of SB 579 that are open to interpretation. As noted in the new Labor Code section 233(c): (c) An employer shall not deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventive care of a family member, or for any other reason specified in subdivision (a) of Section 246.5. Separately, Labor Code section 233 (commonly referred to as the “Kin Care” law) requires an employer to allow an employee to use accrued and “available” sick leave (which is the amount that would accrue during a six month period) for the purposes specified in the paid sick leave law. Family members covered under this California law include: Under the new law, the designation of the sick leave taken under this labor code is at the sole discretion of the employee. California's kin care law, Labor Code section 233, requires that any employer who provides sick leave for employees shall permit an employee to use a portion of his or her sick leave to care for a covered relative. This same logic may now potentially apply to Labor Code section 233 where the statute no longer expressly allows employers to enforce their terms and conditions on the use of sick leave/PTO, including the requirement of a medical note. California’s Kin Care law (California Labor Code § 233) requires that employers providing sick leave to employees pursuant to a company policy must permit an employee to use a portion of that leave (in an amount not less than the sick leave that would be accrued during six months) for the following reasons: (a) Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, for the reasons specified in subdivision (a) of Section 246.5. Its more than 400 attorneys serve regional, national, and international clients from over 20 offices, with teams based in New York, Chicago, Philadelphia, Miami, St. Louis, and other major business and economic centers across 11 states. The California Supreme Court has issued a significant ruling on the scope of California’s “kin care” law, Labor Code § 233, which entitles employees in certain circumstances to use paid sick leave to care for ill family members. California "Kin Care" Law Applies To Non-Traditional Sick Leave Policies. “Child-Related Activities” now includes finding, enrolling, or reenrolling a child in a school or with a licensed child care provider. Following the implementation of SB 579’s modifications to Labor Code 233, it will continue to be unlawful to discriminate or retaliate against an employee who uses Protected Sick Leave. The major impact here will be an employee’s protection from disciplinary action or other adverse employment action based on their use of sick leave or PTO that falls under the Protected Sick Leave provisions of Labor Code section 233. This new law provides that the designation of the sick leave taken under Labor Code section 233 is at the sole discretion of the employee. Prior results do not guarantee a similar outcome. The reason for concern here follows the recent interpretations the Labor Commissioner has made regarding the Paid Sick Leave law. One major benefit to employers of SB 579’s changes to Labor Code section 233 is that employers may no longer have to track the specific use of an employee’s paid sick leave or PTO to determine if it was used for the employee’s own illness or that of a covered family member. Interaction of Current Kin Care Law with Paid Sick Leave Law Following the recent enactment of California's Paid Sick Leave law (Labor Code sections 245-249) on July 1, 2015, many employers were left confused about how to practically administer the Paid Sick Leave law with the existing sick leave protections provided under the Kin Care law. For more information or immediate guidance, contact: Goldberg Segalla is one of the largest and fastest-growing law firms headquartered in the United States, with a footprint that reaches from Los Angeles to Long Island. To a certain degree, this change in the law seems to take away the purpose of the previous title of “Kin Care” leave. The California paid sick leave law, known as the Healthy Workplaces, Healthy Families Act of 2014, required employers to provide paid sick leave beginning on July 1, 2015. Impact of Protected Sick Leave on Excessive Absenteeism Policies and Other Adverse Employment Actions. These revisions eliminate inconsistencies between Kin Care and California’s new Paid. California's kin care law, Labor Code section 233, requires that any employer who provides sick leave for employees shall permit an employee to use a portion of his or her sick leave to care for a covered relative. What family members are included under kin care leave? Therefore, the employer may not designate sick leave as Kin Care leave by itself in order to quickly deplete the Kin Care leave available. Before passing the statewide Paid Sick Leave law, California had in place the “Kin Care” law (Labor Code §233). For example, if an employer provides 12 days of paid sick leave, the employer must allow employees to use at least 6 days of paid sick leave to care for an ill family member, subject to the same terms and conditions for an employee’s own sick leave use. EXAMPLE:  An employer provides 10 days of paid sick leave a year and their policy provides that they can request a doctor’s note to verify sick leave use. The Kin Care law permits an employee to use up to one-half of his or her accrued paid sick leave time to attend to an illness of the employee’s child, parent, spouse, or domestic partner. What is the rule on labor code 233 and 234 (California kin care) with a collectively bargained for employee? LCW will provide updates on any such interpretations from the Labor Commissioner or any other governmental agency as they become available. Note: Employers can also require that employees who use this leave be required to utilize any available vacation, PTO, comp time, or other personal leave for any such absences related to child-related activities. Below is a summary of the impact of the law and best practices employers can implement before it goes into effect on January 1, 2016. Beginning January 1, 2016, 5 days of paid sick leave would be covered under the Protected Sick Leave law. For example, if an employer provides 12 days of paid sick … Useful information for navigating legal challenges. Accordingly, any employee aggrieved by a violation of this labor code remains entitled reinstatement and actual damages, or one day’s pay, whichever is greater, and to appropriate equitable relief. Review policies and practices related to excessive absenteeism, performance evaluations, and any other disciplinary/adverse employment action to ensure that an employee’s use of sick leave or PTO for Protected Sick Leave purposes are not factored into any such actions. Changes to Kin Care Law. SB 1383 – California Family Rights Act (Effective Jan. 1, 2021) SB 1383 repeals the California New Parent Leave Act (NPLA) and California Family Rights Act (CFRA), and instead implements a new CFRA. Generally, the law requires employers to provide at least one hour of paid sick leave for every 30 hours worked, or a minimum annual lump sum of 24 hours. Employers should take care to apprise their employees of this change. Review policies and practices related to doctor’s notes or other verification requirements for sick leave use and use caution when applying such requirements to an employee’s use of Protected Sick Leave of one-half of their total annual accrual of paid sick leave in a year. Read this complete California Code, Labor Code - LAB § 246.5 on Westlaw FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system . As a result, the employer in this example will now have to wait until after an employee uses 5 days of sick leave before requiring a doctor’s note as provided in the employer’s policy. Employers are prohibited from denying an employee the right to use one-half of their annual accrual of sick leave or PTO to care for such covered family members or discharging, threatening to discharge, demoting, suspending, or in any manner discriminating against an employee for using, or attempting to exercise the right to use sick leave in such a manner. As always, fall was a busy time for California Governor Gavin Newsom as he signed into law a slew of new bills. While the Paid Sick Leave law is silent on whether employers can request verification of the need to use paid sick leave, it does require employers to provide an employee with paid sick days upon oral or written request (Labor Code section 246.5(a)) and allows an employee to determine how much paid sick leave he or she needs to use (Labor Code section 246(j)). A family member is classed as: In addition, employees must provide reasonable notice to their employer of the need for such child-related activities leave. 1. Since 2000, California employers who have provided paid sick leave or PTO to employees must allow an employee to take up to one-half of an annual accrual such sick leave/PTO to care for a parent, child, spouse, or registered domestic partner. ... AB 2017, Mullin. Employers should review their policies and practices related to Child-Related Activities and ensure that the changes to Labor Code 230.8 are implemented and applied to employee requests for such leave. “Family member,” under this provision, follows the definition provided in Labor Code § 245.5, which includes the employee’s child, parent or guardian, spouse or domestic partner, grandparent, grandchild, and sibling. Telesis Group(S164692, February 18, 2010) case, the plaintiffs argued that the company violated California employment law by refusing to let them use paid sick time to care for ill family members. This difference in definition between the two laws and the deviation in protections for employees left many employers confused about what type of sick leave use was protected and for what reasons. The Labor Commissioner has indicated in presentations on the Paid Sick Leave Law that an employer’s insistence on verification of AB 1522 sick leave through the use of a doctor’s note could be deemed to be a denial of the use of such covered paid sick leave and therefore be unlawful. To avoid confusion with existing state and federal family leave laws, Labor Code §233 is called "kin care… Revisions to the California Labor Code section 233 (“Kin Care”) took effect on January 1, 2016. It’s been more than 10 years since California enacted Labor Code § 233, commonly referred to as the “kin care” statute.In essence, the statute requires employers to allow employees to use half of their sick leave accrual to care for certain relatives if they become ill. The Kin Care Law, codified as Labor Code § 233, requires employers that pay sick leave to employees to allow employees to use up to a certain, limited amount of accrued sick leave to tend to ill … Sexual Harassment Training – Is Your Agency 2021 Ready? Liebert Cassidy Whitmore is a full service employment and labor relations law firm providing expert consultation, representation, litigation, negotiation and investigation services to public agency management…, Additional Funding for Schools, Community Colleges, and Other Local Agencies is on the Ballot November 3, Governor Newsom Signs SB 1159 and AB 685 Into Law Impacting COVID-19 Related Workers’ Compensation Coverage and Creating New Notice and Reporting Requirements Related to COVID-19 Workplace Exposures, AB 2147 Clears Career Paths for Formerly Incarcerated Persons Trained as Firefighters, 2020 Vision: Setting our Sights on the Year Ahead, Three New Labor And Employment Law Bills That Will Impact Public Employers, California Public Agency Labor & Employment Blog. What is kin care leave? An employee who is a victim of domestic violence, sexual assault, or stalking. Governor Issues Executive Order Revising Cal/OSHA Quarantine Guidance and Addressing Other COVID-19 Related Issues, CDPH Reduces Quarantine Period Following “Close Contact” Exposures to Align with CDC Guidance, CDPH Reduces Quarantine Period Following “Close Contact” Exposures to Align with CDC Guidance, but Public School Districts and Community College Districts Must Follow Stricter Guidance Requiring 14-Day Quarantine. For example, under these current laws, an employee may use the Paid Sick Leave law to care for a parent-in-law, grandparent, grandchild, or sibling, but such leave would not count as Kin Care leave for those family members. Currently, Labor Code section 233 does not affect an employer’s right to request a doctor’s note to verify the need for sick leave to care for a parent, child, spouse, or registered domestic partner to the extent that the employer’s policy has such a requirement otherwise for the employee’s own sick leave use. On October 11, 2015, Governor Jerry Brown signed SB 579 into law – this bill makes significant modifications to the current “Kin Care” law (Labor Code section 233) and the Child-Related Activities Leave law (Labor Code section 230.8). The Paid Sick Leave law also points out that employers cannot deny an employee the right to use AB 1522 covered paid sick leave or retaliate against an employee for using such covered paid sick leave. For purposes of the remainder of this article, we will use the term “Protected Sick Leave” when referring to the revised Labor Code section 233. Specifically, under the existing Labor Code § 233, more commonly referred to as the “Kin Care” law, employers must allow employees to take up to half of their accrued sick leave to care for a family member (thus, “kin care”). This allows employees to use up to half of their sick leave for specific family members as defined by California law. Following the recent enactment of California’s Paid Sick Leave law (Labor Code sections 245-249) on July 1, 2015, many employers were left confused about how to practically administer the Paid Sick Leave law with the existing sick leave protections provided under the Kin Care law. Except for the need to address a child care provider or school emergency, the use of such leave can be limited to 8 hours per month. Labor Code section 234 provides that “[a]n employer absence control policy that counts sick leave taken pursuant … It is important to note that in the McCarther v. Pac. Because the definition of “family member” was not uniform between the Kin Care leave protections and the new Paid Sick Leave Law, the main purpose of SB 579 was to harmonize those definitions and make the two laws more compatible. Otherwise, an employer’s insistence on requiring a doctor’s certification may be deemed to be discrimination or retaliation for using Protected Sick Leave. 1. As a result, such Protected Sick Leave time should not be counted towards excessive absenteeism determinations, be referenced in performance evaluations, or used otherwise in any disciplinary/adverse employment actions. Once SB 579 goes into effect on January 1, 2016, Labor Code section 233 will be amended to provide employees with protected leave for their use of one-half of their annual accrued sick leave or PTO for the additional following reasons: In effect, beginning January 1, 2016, what we now know as “Kin Care” leave will no longer be used solely for the purpose of taking care of an employee’s “kin” or family members, but rather will apply to almost any use of covered sick leave by an employee. There are two other major impacts that SB 579’s new Protected Sick Leave provisions will have on employers: a. Employers will need to make sure that their more generous sick leave/PTO polices allow employees to use at least one-half of their total annual accrual of paid sick leave for the now expanded Protected Sick Leave purposes. : Christopher P. Maugans in Buffalo Business First, EEOC Releases Guidance on COVID-19 Vaccinations in the Workplace. “Family member” for purposes of kin care is defined by Labor Code §§ 233 and 245.5(c) to include an employee’s child, parent or guardian, spouse or registered domestic partner, grandchild, grandparent, and sibling. b. When Kin Care Applies, Sick Leave and Paid Time Off and Vacation…. Even though many employers recently revised their sick leave/PTO policies in light of the recent Paid Sick Leave Law, those policies that provide a more generous amount of paid sick leave should be reviewed again to ensure compliance with SB 579. However, SB 579 removes this sentence from Labor Code section 233(a). Labor Code Section 233(a) defines Kin Care leave. Under the existing Kin Care law, California employers who provide paid sick leave or PTO to employees are required to allow an employee to take up to one-half of his/her annual accrual of such sick leave/PTO to attend to the illness for the following family members:  parent, child, spouse, or registered domestic partner. Specifically, under the existing Labor Code § 233, more commonly referred to as the “Kin Care” law, employers must allow employees to take up to half of their accrued sick leave to care for a family member (thus, “kin care”). For example, the Paid Sick Leave law provides an employee the ability to take sick leave to care for a broader definition of “family member,” including parent, child, spouse, registered domestic partner AND parent-in-law, grandparent, grandchild, and sibling. As a result, this begs the question of whether an employer can request a doctor’s note from an employee for use of Protected Sick Leave for one-half of the annual accrual of sick leave/PTO used in a year for these sick leave purposes. An act to amend Section 233 of the Labor Code, relating to employment. The following types of leave are provided for eligible … Under the existing Kin Care law, California employers who provide paid sick leave or PTO to employees are required to allow an employee to take up to one-half of his/her annual accrual of such sick leave/PTO to attend to the illness for the following family members: parent, child, spouse, or registered domestic partner. A. SB 579 Modifications to Kin Care Law (Labor Code section 233). California Supreme Court Rules "Kin Care" Law Inapplicable to Leave Plans Providing Unlimited or Uncapped Paid Sick Time. These revisions eliminate inconsistencies between Kin Care and California’s new Paid Sick Leave (“PSL”) law, which went into full effect on July 1, 2015. This bill adds Section 77.8 to the Labor Code and repeals Sections 3212.86, 3212.87, and 3212.88 of the Labor Code. Potential Limitation on Ability to Seek Doctor’s Notes for Sick Leave Absences Covered by the Protected Sick Leave Provisions. Labor Code section 230.8 currently requires employers with 25 or more employees to allow an employee to take off up to 40 hours per year (up to 8 hours/month) for “child-related activities” if the employee is a parent with one or more children attending kindergarten, grades 1 to 12, or is at a licensed child care provider. Under this law, no employer in California can deny an employee the right to use their sick leave entitlement to attend to the illness or preventative care of a family member. 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