Kin Care - AB 109
“Kin Care” is a right granted to eligible employees under the California Labor Code. Kin Care authorizes employees to use up to one-half (½) of the sick leave that they accrue annually to take time off to care for a sick family member. Employees do not receive additional sick leave under Kin Care. Instead, sick leave taken under Kin Care is protected and may not be “counted against” or used as a basis for disciplining an employee for absenteeism. No other sick time is protected if the nurse has used 1/2 of their sick leave.
Revisions to the California Labor Code section 233 (“Kin Care”) took effect on January 1, 2016. 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.
Amount of Leave
Kin Care applies to “sick leave” which is defined as “accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment.
Definition of Family
Permitted Reasons to Use Paid Sick Time
Limits on Employer’s Ability to Restrict Sick Leave
Other Important Information
Revisions to the California Labor Code section 233 (“Kin Care”) took effect on January 1, 2016. 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.
Amount of Leave
Kin Care applies to “sick leave” which is defined as “accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment.
- Kin Care applies to sick leave while the applicability of Kin Care to Paid Time Off (“PTO”) policies and/or Vacation programs remains somewhat unclear by the courts at this time.
- The revised Kin Care law requires that at least one-half of the PTO time be available to employees for use for any of the permitted reasons (see below).
- If your company has separate vacation and sick leave plans it remains unclear whether the revised Kin Care law requires one-half of the accrued vacation to be available for use.
- An employer may elect to advance sick leave to an employee before it is accrued, but there is no requirement for an employer to do so under this law.
- If employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee.
- The paid sick leave law allows employees to decide how much paid leave time to take, subject to their employer’s ability to set a two-hour minimum. (Such as prorated or increased if 12 hrs./per absence)
Definition of Family
- A child, means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
- A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
- A spouse.
- A registered domestic partner.
- A grandparent.
- A grandchild.
- A sibling.
Permitted Reasons to Use Paid Sick Time
- This list includes the “Diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee’s family member,” and “For an employee who is a victim of domestic violence, sexual assault, or stalking.”
- If an employee has accrued available sick days, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use paid sick leave for a partial day (e.g., to attend a doctor’s appointment), and may not discipline the employee for doing so.
- The paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes; it “protects” only an employee’s accrued and available paid sick leave as specified in the statute.
- One must work for the same employer for at least 30 days within a year in California, and satisfy a 90-day employment period (similar to a probationary period) before taking any sick leave
Limits on Employer’s Ability to Restrict Sick Leave
- The NEW revision removes the provision which expressly allowed employers to place conditions and restrictions on the use of employee sick leave (e.g., requiring doctor’s notes).
- Prohibits retaliation or discrimination against an employee “for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventative care of a family member under the permitted reasons (Listed above).
Other Important Information
- If an employee does not have any accrued or available paid sick leave, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence”
- If an employee has an absence that would otherwise violate the employer’s attendance policy, and if the absence was for a reason not covered under the paid sick leave law, the employer is not required to allow the employee to use paid sick leave for that absence, and it is not a violation of the law for the employer to give an “occurrence” for such absence.
- The portion of the unscheduled absence not covered by accrued paid sick leave could be subject to disciplinary action under the employer’s attendance policy.
- There is no requirement to provide additional sick days.
- It only addresses paid sick leave time off.
- Time taken off as paid sick leave must be paid at an employee’s regular rate of pay.