SB 579’s changes to the Kin Care law and the Child-Related Activities Leave law will have a major impact on the current policies and practices of most California employers. It is important to note that in the McCarther v. Pac. California "Kin Care" Law Applies To Non-Traditional Sick Leave Policies. 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)). There are two other major impacts that SB 579’s new Protected Sick Leave provisions will have on employers: a. Sexual Harassment Training – Is Your Agency 2021 Ready? This allows employees to use up to half of their sick leave for specific family members as defined by California law. 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. Otherwise, an employer’s insistence on requiring a doctor’s certification may be deemed to be discrimination or retaliation for using Protected Sick Leave. Under the new law, the designation of the sick leave taken under this labor code is at the sole discretion of the employee. Similar to the application of Kin Care leave, an employee’s use of one-half of their annual accrual of sick leave or PTO in a year for the expanded reasons noted earlier is now protected. The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member. 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. This bill adds Section 77.8 to the Labor Code and repeals Sections 3212.86, 3212.87, and 3212.88 of the Labor Code. California's "kin care" leave law, Labor Code § 233, requires employers to allow employees to use their accrued and available sick leave to attend to the illness of a child, parent, spouse or domestic partner, in an amount not less than what would be accrued during six months of employment. 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. For more detailed codes research information, including annotations and citations, please visit Westlaw . ... AB 2017, Mullin. “Child-Related Activities” now includes finding, enrolling, or reenrolling a child in a school or with a licensed child care provider. 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. 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. The covered employee is only allowed to take up to 40 hours per year of such leave in a year. 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. 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. 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 . Therefore, the employer may not designate sick leave as Kin Care leave by itself in order to quickly deplete the Kin Care leave available. To a certain degree, this change in the law seems to take away the purpose of the previous title of “Kin Care” leave. 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. The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee. 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. However, SB 579 removes this sentence from Labor Code section 233(a). : Christopher P. Maugans in Buffalo Business First, EEOC Releases Guidance on COVID-19 Vaccinations in the Workplace. 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”). California Supreme Court Rules "Kin Care" Law Inapplicable to Leave Plans Providing Unlimited or Uncapped Paid Sick Time. 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. Kin care leave is time provided to employees to take time off from work to care for a family member. Employee: sick leave: kin care. To receive these Special Bulletins on the day they are released, please send your email address to email@example.com. Changes to Kin Care Law. 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: An act to amend Section 233 of the Labor Code, relating to employment. When Kin Care Applies, Sick Leave and Paid Time Off and Vacation…. 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. What is the rule on labor code 233 and 234 (California kin care) with a collectively bargained for employee? 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. Under California's kin-care law, which predates the statewide paid-sick-leave law, employees can use at least half of their accrued sick leave to care for a family member's injury or illness. 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. California Revises “Kin Care” Law in Light of Paid Sick Leave Requirements. See Labor Code sections 233-234. 2. The reason for concern here follows the recent interpretations the Labor Commissioner has made regarding the Paid Sick Leave law. A family member is classed as: What types of leave are provided in California? 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. June 27, 2008. 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. AB 2017: California Employees Hold the Sole Right to Designate Kin Care Leave, Can Employers Require COVID-19 Vaccinations? Family members covered under this California law include: CA Labor Code § 233 (2017) (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. 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. A. SB 579 Modifications to Kin Care Law (Labor Code section 233). Employers should take care to apprise their employees of this change. 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. 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. Impact of Protected Sick Leave on Excessive Absenteeism Policies and Other Adverse Employment Actions. “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. Note: 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. 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. (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. 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. 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. The law also includes leave to address a child care provider or school emergency, including a request that the child be picked up from school/child care, behavioral/discipline problems, closure or unexpected unavailability of the school (excluding planned holidays), or a natural disaster. The following types of leave are provided for eligible … To avoid confusion with existing state and federal family leave laws, Labor Code §233 is called "kin care… If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office. 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. 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. 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. What is kin care leave? Labor Code section 234 provides that “[a]n employer absence control policy that counts sick leave taken pursuant … As a result, we may want to use the broader title of “Protected Sick Leave”. 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. 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 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. 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. What family members are included under kin care leave? Section 233 of the California Labor Code is often referred to as kin care. Useful information for navigating legal challenges. 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. 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. “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. 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. “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. 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”). 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. does … 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. 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. Revisions to the California Labor Code section 233 (“Kin Care”) took effect on January 1, 2016. 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 Kin care law in California states employees can use half of the allotted sick time for kin care without discrimination or discipline. 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. 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. 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. C. Practical Tips for Employers to Prepare for SB 579. 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. 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. 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. 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. 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. As always, fall was a busy time for California Governor Gavin Newsom as he signed into law a slew of new bills. Prior results do not guarantee a similar outcome. 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. However, SB 579 did not just focus on harmonizing the definition of “family member” between the two laws. Attorney Advertising.
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