AB 2017 – Clarifies That The Designation Of Sick Leave As Protected Sick Leave Under Labor Code 233 Is Solely At The Employee’s Discretion for Nonprofits

CATEGORY: Nonprofit News
CLIENT TYPE: Nonprofit
DATE: Oct 22, 2020

Prior to 2016, Labor Code section 233 provided employees an entitlement and protection to use accrued and available sick leave (including paid time off (PTO) leave that can be used for sick leave purposes) in an amount no less than that accrued over a six-month period in a calendar year to care for a parent, child, spouse, or registered domestic partner who was sick.  This law was frequently referred to as the “kin care” law. 

Following the 2015 implementation of the Paid Sick Leave Law (Labor Code section 245, et. seq.) and its protections for additional sick leave use (including the employee’s own need to use sick leave), Labor Code section 233 was amended in 2016 to broaden its protections to any sick leave use covered under the Paid Sick Leave Law.  Instead of just being limited to protecting sick leave use to care for a family member who is sick, Section 233 expanded those protections to the following sick leave uses provided in the Paid Sick Leave Law:

Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee;

Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee’s family member (parent, parent-in-law, child, spouse, registered domestic partner, grandparent, grandchild, or sibling); or

For various specific purposes as provided in Labor Code sections 230 and 230.1 for an employee who has been the victim of domestic violence, sexual assault, or stalking.

Under the current Paid Sick Leave Law, sick leave use now protected under Labor Code section 233 is not just limited to care for covered family members as was the case with the prior version of the law. Further, under the current Paid Sick Leave Law, employees must receive 24 hours of frontloaded paid sick leave, or at least one hour of sick leave for every 30 hours worked on an accrual basis, to be used for specified sick leave purposes consistent with the law.  The Paid Sick Leave Law and Labor Code section 233 also permit employers to cap an employee’s annual use of sick leave to the greater of 24 hours or half of the amount of sick leave an employee accrued in a year. 

As a result, where the greater of either 24 hours of sick leave, or the first one-half of an employee’s annual sick leave accruals (e.g., first 48 hours of sick leave where 96 hours are accrued annually) used were protected under Section 233 if such protected sick leave was used for the employee’s own need for sick leave, any additional sick leave used later in the calendar year to care for a covered family member would be technically unprotected.

To address this issue, AB 2017 amends Labor Code section 233 to allow employees the sole discretion to specify whether to designate used sick leave as being taken for one of these protected reasons under the law.  For example, an employee can now indicate that sick leave taken for their own illness not count towards the amount of sick leave protected under Labor Code section 233, so the employee can then have such protected sick leave available later for other purposes.  In such circumstances, any sick leave not designated by an employee for protection under Labor Code section 233 would then be technically unprotected and subject to the impacts of an employee’s absenteeism policies and procedures. 

If an employer only provides the minimum amount of sick leave required under the Paid Sick Leave law, all use of sick leave is protected, and AB 2017 will not have an impact.  Many employers have sick leave policies that do not limit the amount of sick leave they are permitted to use for authorized purposes, and AB 2017 will also not impact those employers. 

It is important to note that local sick leave ordinances have additional requirements and protections.  For example, many local ordinances, such as the San Francisco and Oakland Paid Sick Leave Ordinances, do not permit an annual cap on the ability of an employee to use their accrued sick leave.

As a result of AB 2017, employers with sick leave policies that provide annual use caps may need to implement sick leave tracking procedures to better differentiate between an employee’s sick leave use that is designated as protected under Labor Code section 233 versus any such other sick leave used by the employee.