Overview of the Kin Care Law
California’s Kin Care Law, for a long time, existed only in the form of a regulation. But starting January 1, 2017 employees with paid sick leave in California have also had rights under California law—either SB 579 or AB 2260—in addition to those under the sick leave statute, CFRA, and FMLA.
Kin care laws give workers the right to apportion their paid sick leave for a specified purpose among family members. For example, employees with 80 hours of leave could use 30 hours for their own illness and 50 hours for their sick grandmother. These family members could include parents, siblings, children, spouses, grandparents, grandchildren, domestic partners, and a child of a domestic partner. Under the paid sick leave law, Kin Care applies when an employee uses sick leave in relation to their own sick leave or that of a sick family member. When it does apply, Kin Care requires that an employee be allowed to portion the available leave between the various improved alternatives.
Sick leave statutes have been around since 1976—when a sick leave statute was enacted by California in relation to California school district employees . Kin Care laws started to become common around 1993 and in particular in 1994 when they were included in the Family Medical Leave Act (FMLA).
CalIFORNIA’s Kin Care laws are an extension of the CFRA and FMLA provisions that allow certain sick leave to be used during an otherwise unpaid period of leave from work for one of these reasons. They also include the statutory construction that requires the leave to be apportioned.
Kin Care laws are important because they clarify the employer’s obligations to allow intermittent leave periods, for example under CFRA and FMLA. These laws require that employees—wherever they are employed—that Kin Care laws be posted in a prominent place where employees can view them. Some states without sick leave laws also have Kin Care rights that allow employees to use their sick leave to care for a sibling, grandchild, grandparent, and domestic partner, while California only gives rights to children, parents, spouse, registered domestic partner, and grandparents.
Eligible Individuals Under the Kin Care Law
The Kin Care law benefits employees wanting to take time off to care for family members. "Family member" under the law includes a child (biological, adopted, foster or stepchild, or a child of a registered domestic partner), spouse, parent, legal guardian or someone else who holds "equivalent standing." "Equivalent standing" means a person with each of whose parents the employee has such a close association and enduring relationship that he or she is as close as a biological child. A "parent" can be a parent in law, stepparent, foster parent, legal guardian or someone who stood in loco parentis to the employee when the employee was a child.
Rights and Protections for Employees
Employees are entitled to use Kin Care leave under the same conditions as accrued sick leave. Employees may take Kin Care leave in two forms: paid time off or unpaid time off. California Labor Code section 233 protects employees’ accrued and unused sick leave by providing them the right to use their accrued and unused sick leave to care for themselves and certain family members, or to obtain preventative care for themselves or certain family members. An employee may use up to half of his or her sick leave each calendar year for these purposes. On March 29, 2016, the California Supreme Court in Donahue Schriber Realty Group, Inc. v. N.C. reported that an employee does not have to comply with an employer’s "usual and customary requirements" for requesting, verifying, and using sick leave if the employee is requesting sick leave under Labor Code section 233. Any paid sick leave that an employer provides may apply toward Labor Code section 233 requirements.
Takeaway: When employees are sick at the same time their family members are sick, they may use previously accrued sick leave, paid or unpaid time off as Kin Care leave. Employers may neither discharge, discipline or discriminate against an employee for using Kin Care leave nor encourage an employee to work during a period of time he or she is sick or needs care using Kin Care leave. Employers may not require employees to provide verification of their illness or their family member’s illness in order to take sick leave or Kin Care leave. Employers must compensate employees during the time taken as Kin Care leave, provided such leave is compensated through paid sick leave or paid time off.
Employer Responsibilities
As part of 2008 legislation, California Labor Code section 233 added two employer obligations to the Kin Care law. First, employers must provide written notice of the law to employees upon hire and at the time of an employee’s request for leave under the law. The notice requirement does not apply to employers that already have a sick leave policy in their handbooks or other documents that contains the rights and obligations guaranteed by the law.
Second, employers must maintain an employee’s right to accrued paid sick leave, even if the employee is prohibited from using the leave because he or she has already used it for another purpose. For example, suppose an employee takes a significant amount of Kin Care leave under the law to care for a child. If that same employee then becomes ill and wants to use Kin Care leave to care for himself or herself, the employer must permit that employee to take the leave even if they are required to first exhaust any other available paid sick leave separate from that required by Kin Care. Failure to maintain an employee’s rights will result in a fine of $500 per violation.
Making a Kin Care Leave Request
When an employee needs to take time off due to the illness of a child, parent, spouse, domestic partner, grandparent, grandchild, or sibling, the employee must give as much advance notice as possible. If there is no advance notice, the employer may require the employee to follow the usual and previous call-in procedures for giving notice.
The employee does not have to specifically ask for "kin care leave" — just notify the employer that the employee needs time off to care for a family member. When filling out the employer’s paperwork for sick leave, the employee should indicate that the time is being taken to care for a family member. The employer cannot require the employee to explain the reason for the leave. There is no specific Kin Care Law form that employees are required to fill out — employers are permitted to use their own forms as long as they are consistent with the law . If the employer has no form, the employee may submit a simple letter stating that he or she is taking the time under California’s Kin Care Law.
The employer must have a process for employees to submit their requests for kin care leave: An employee’s request can be made verbally, in writing, or by using the employer’s usual procedures for requesting leaves.
Remember that California’s "Kin Care Law" applies only to the sick family members identified in the law: the employee’s child, parent, spouse, domestic partner, grandparent, sibling or grandchild. It does not afford time off for the needs of any other relatives, even if the employee considers that relative to be family.
Kin care leave is unpaid. However, employees can use any accrued sick leave or vacation leave, or any other leave they have elected that is convertible to cash.
Common Myths
One common misconception is that the Kin Care Law applies only in situations where both parents and an employee have the same relationship to the child. As such, it is sometimes mistakenly assumed that the parent of a child is not entitled to use Kin Care to care for their own child’s child, or that the grandparent of a child whose parents both work for the same employer cannot take time off under the law. However, neither of these statements is true. The only requirement is that the child in question have a relationship with the employee who takes time off from work in order to care for him or her.
Another misconception is that Kin Care cannot be used to take care of a disabled child. Not true. Kin Care can be used to look after disabled children, parent children with serious health conditions, and sporadically care for children who are normally healthy but have episodic illnesses.
Most employees erroneously believe that Kin Care can only be taken in full-day increments but Kin Care can in fact be taken in whatever increments the employer utilizes for paid sick leave. And it seems that most employers still have contact requirements before allowing an employee to use their sick time, ensuring that the illness is not an inconvenience but a legitimate need.
Recent Changes and Developments
California employers have been able to require all employees to use their paid sick leave before they use their Kin Care leave. Although this policy was unenforceable, many employers have not removed such policies. Until recently, it was unclear whether or not an employer could require that an employee use his or her Kin Care leave before using his or her paid sick leave. In August of 2018, in the case of Ochoa v. DirectTV, the California Court of Appeal held that such a policy was unenforceable. The Court of Appeal held that employers cannot require employees to follow a policy requiring them to use their Kin Care leave before using their paid sick leave.
Many employers sued in the hopes of having the California Supreme Court accept this case on appeal bringing some degree of finality to the situation. However, the Supreme Court denied review in July of 2019. Now that the Court of Appeal’s decision has become final we expect that most employers will revise their sick leave policies to avoid requiring that their employees use their Kin Care leave before paying out their paid sick leave.
Obtaining Legal Assistance
Employees who believe their employer has violated their rights under the Kin Care Law may wish to review their situation with legal counsel. If your company has fifty or more employees and you have been retaliated or discriminated against for taking Kin Care leave, you may be able to sue the company for violating the Family Medical Leave Act and California Family Rights Act.
Currently, there are a number of excellent law firms in California that limit their practice to employment law. There are also numerous small employment law firms and larger law firms with employment law departments in every major city in California from San Diego to San Francisco. Lawyers representing employees in employment law matters may charge in one of three ways: 100% attorney’s fee contingency, an hourly attorney’s fee, or a combination of attorney’s fees at a discounted rate and the remainder of the attorney’s fee on contingency .
If you would like to use only a portion of your consultation time to determine if you have enough information and enough evidence to have a lawyer take your case on a contingency basis, make sure you mention this to the attorney’s assistant when you first schedule an appointment with the employment law firm. That way you won’t be paying $400.00 for a 15 minute consultation because the attorney may not have been able to determine that they needed to spend additional time evaluating your case until most of the consultation time had elapsed.
Some people who have been injured on the job, including employees who have experienced mistreatment by an employer, are afraid to contact a lawyer because it may cost too much money or they fear that it will cost them too much money if they lose their case. For this reason, many employment law firms in California offer free consultations to prospective clients. It is important to be informed and to get the legal assistance and representation that you may need.