Should We Still Call It "Kin Care"? – SB 579 Expands Labor Code Section 233's Sick Leave Protections and Modifies Child-Related Activities Leave Under Labor Code Section 230.8

Category: Special Bulletins
Date: Aug 18, 2016 04:56 PM
Should We Still Call It "Kin Care"? – SB 579 Expands Labor Code Section 233's Sick Leave Protections and Modifies Child-Related Activities Leave Under Labor Code Section 230.8

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).  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.  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.

A. SB 579 Modifications to Kin Care Law (Labor Code section 233)

1. Overview of Existing Law

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.  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.  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.

2. 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 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 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.  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.

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.

3. New Changes to Kin Care Law

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.  However, SB 579 did not just focus on harmonizing the definition of "family member" between the two laws.  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.  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:

  • The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee.
  • The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee's family member.
  • An employee who is a victim of domestic violence, sexual assault, or stalking.

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.  To a certain degree, this change in the law seems to take away the purpose of the previous title of "Kin Care" leave.  As a result, we may want to use the broader title of "Protected 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.

4. Interaction of New Protected Sick Leave Provisions with 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.  In general, an employee's initial paid sick leave usage in a year will now count towards both the Paid Sick Leave Law (greater of 3 days or 24 hours) and the Protected Sick Leave law's protections (one-half of their annual accrual of sick leave/PTO). 

5. Other Impacts of the New Protected Sick Leave Provisions

There are two other major impacts that SB 579's new Protected Sick Leave provisions will have on employers:

a. Potential Limitation on Ability to Seek Doctor's Notes for Sick Leave Absences Covered by the Protected Sick Leave Provisions

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.  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.

However, SB 579 removes this sentence from Labor Code section 233(a).  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.  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.  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.

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.  Otherwise, an employer's insistence on requiring a doctor's certification may be deemed to be discrimination or retaliation for using Protected Sick Leave.

The reason for concern here follows the recent interpretations the Labor Commissioner has made regarding the Paid Sick Leave law.  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)).  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.  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.  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. 

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.  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.   

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.  Beginning January 1, 2016, 5 days of paid sick leave would be covered under the Protected Sick Leave law.  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.

b. Impact of Protected Sick Leave on Excessive Absenteeism Policies and Other Adverse Employment Actions

Employers will need to review their sick leave policies and excessive absenteeism policies to ensure compliance with the changes to Labor Code section 233.  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.  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.  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.

B. SB 579 Modifies Child-Related Activities Leave Law to Now Include Time to Enroll with a Child Care Provider

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.  Beginning January 1, 2016, SB 579 modifies Labor Code section 230.8 as follows:

  • "Child-Related Activities" now includes finding, enrolling, or reenrolling a child in a school or with a licensed child care provider.  
  • 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.
  • "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.

The other provisions of Labor Code section 230.8 generally remain intact.  The covered employee is only allowed to take up to 40 hours per year of such leave in a year.  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.  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.  In addition, employees must provide reasonable notice to their employer of the need for such child-related activities leave.

C. Practical Tips for Employers to Prepare for SB 579

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.  Here are some practical steps that can be taken to prepare for these changes to the law:

  • 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.  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.
  • 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.
  • 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. 
  • 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.

Similar to the Paid Sick Leave Law, there are many areas of SB 579 that are open to interpretation.  LCW will provide updates on any such interpretations from the Labor Commissioner or any other governmental agency as they become available. 

Note:
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