WORKPLACE LAW -
Kin Care Rights
Question:
I am considering a position as an administrative assistant at a small office. One of the issues that has me on the fence is that when explaining their benefits to me, the manager told me that they do not allow their employees to use sick time for anything other than their own personal illness. Can my prospective employer keep me from using my sick time if my daughter is sick or if I need to accompany my dad to a doctor's appointment?
Answer:
California Labor Code Section 233 states that employers of any size who provide paid sick leave benefits to their employees must allow those employees to use up to one half of their annual accrued sick leave to attend to an illness of the employee’s child, parent, spouse, or registered domestic partner. This benefit is generally referred to as kin care. For example, if you normally accrue 10 sick days per year, 5 of your accrued sick leave days may be used for kin care each year.
For purposes of “kin care,” a child includes biological, foster or adopted children, stepchildren, a legal ward, a child of a registered domestic partner or a child of a person standing in loco parentis (i.e. acting as a temporary guardian). “Parent” means a biological, foster, or adoptive parent, a stepparent, or a legal guardian.
The kin care law does not require employers to provide paid sick leave, but does apply whenever sick leave is provided, including when sick leave is combined with other “paid time off,” or otherwise provided in a manner other than the typical annual accrual method. Employers who provide sick leave in any manner are prohibited from discriminating or taking adverse action against employees who use up to one half of their yearly allotted sick leave to care for a child, parent, spouse or registered domestic partner.
Employee rights under the kin care law are in addition to family leave rights provided under the federal Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA). The FMLA and CFRA require public agencies, or private sector employers who employ 50 or more employees, to provide eligible employees with up to 12 weeks of unpaid leave. 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, the employer employs at least 50 employees within 75 miles, and they need to take leave for a qualifying reason. 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. 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 prospective employer is not aware of the relatively recent kin care law, which unlike FMLA and CFRA, applies to small private employers.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2010 Articles