Question:

I have had to take time off of work to care for a sick child. My employer told me that he was crediting the time off to kin care. What is kin care and how is that different from family leave?

Answer:

For purposes of “kin care,” a child includes biological, foster or adopted children, stepchildren, a legal ward, a child of a domestic partner or a child of a person standing in loco parentis (i.e. acting as a temporary guardian). The kin care law does not require employers to provide paid sick leave, but it prohibits those that do from discriminating or taking adverse action against employees who use their allotted sick leave to care for a child, parent, spouse or domestic partner.

The federal Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) require public agencies, and private sector employers who employ 50 or more employees, to provide up to 12 weeks of unpaid leave to eligible employees for four circumstances. Employees may be “eligible” if they have worked for a covered employer for at least one year, have worked at least 1,250 hours over the 12 months before the leave begins, and the employer employs at least 50 employees within 75 miles.

The four circumstances for which family medical leave may be requested are:

  • The birth of a child of the employee;
  • The placement of a child with the employee for adoption or foster care;
  • To care for the employee’s spouse, child or parent who has a serious health condition; and
  • A serious health condition prevents the employee from performing one or more of the essential functions of his or her position.

Under California law (CFRA) medical leave is also permitted to care for the employee’s registered domestic partner. Upon expiration of an approved leave under the FMLA or CFRA, the employee is generally guaranteed reinstatement to his/her job.

Kin care and family leave may be used for the same purposes but are otherwise unrelated. Kin care provides a paid benefit because an employee is using paid sick leave. The family leave (FMLA or CFRA) is generally an unpaid benefit, although an employee can use accrued sick leave during a FMLA or CFRA leave.

Another benefit that an employee may be entitled to as a result of taking time off to care for a sick family member is the Paid Family Leave Program administered by the California Employment Development Department. This program provides wage replacement to workers when they take time off work to care for a seriously ill family member or to bond with a new child. This program does not entitle an employee to leave, but provides wage replacement for an employee who is out on an employer’s approved leave. The Paid Family Leave Program is fully funded by employee contributions via payroll deductions. Both part-time and full-time employees may collect paid family leave benefits if they are otherwise eligible.

It is possible that your employer informed you he was crediting your time off to kin care because the company is not large enough to provide unpaid leave pursuant to the Family Medical Leave Act or California Family Rights Act.
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