Question:

My employer allows me to use my sick leave when my children are home ill. My husband’s employer does not have a similar policy and this places a disproportionate burden on me when our children are ill. The Human Resources Manager at my job told me that my husband’s employer’s policy is illegal. Is that true?

Answer:

If your husband’s employer provides paid sick leave to its employees and refuses to allow them to utilize a portion of their sick leave to care for a sick child, that employer’s policy may be illegal. Under California Labor Code section 233, employers in California who offer paid sick leave must allow their employees to use up to one-half (½) of the employee’s yearly accrued sick leave to attend to a child, parent, spouse, or domestic partner who is ill. This is commonly referred to as “kin care.” Section 233 defines sick leave as accrued increments of compensated leave meant for an employee’s illness or injury, medical appointments or other medical needs.

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 (6) months of employment. This means that 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 one-half (2½) days to care for a sick child, but only after he/she actually had earned those days. An employee who earns two (2) weeks of sick leave per year could use one (1) week of accrued leave for these “kin care” purposes.

Unlike the federal Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), which apply only to employers with at least fifty (50) employees, Labor Code section 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.

Labor Code section 223 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, 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 (½) of the current year’s allotment of sick leave, regardless of any sick leave which was not taken the year before.
  • Third, the amount of days available for kin care need not 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 Labor Code section 233 permits 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 section 233 prohibits retaliation through threats of demotion or termination, or any manner of discrimination for using, or attempting to exercise the right to use sick leave to attend to an illness of a child, parent, spouse, or domestic partner of the employee. California employers are required to include a description of kin care rights in their written sick leave policies.
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