The kin care law does not require that the amount of days available for kin care carry over from year to year. You can limit the amount of kin care leave to one-half of that year’s allotment of sick leave, regardless of what was or was not taken the year before.

Employers who deny employees kin care face financial penalties imposed by the state and as well as civil lawsuits.

California’s kin care law allows employees to use kin care for the same purposes specified by the PSL law and defines “family member” under the kin care law the same as under PSL.1

Kin Care Coverage

Kin care time can be used when the employee is absent for any of the reasons covered under the PSL law. This includes time off for:

• Diagnosis, care, or treatment of an existing health condition, such as the flu;
• Preventive care, such as an annual physical or flu shot;
• Any other reason specified in Labor Code section 246.5, such as leave for victims of acts of violence. For more information, see Permissible Usage.

Kin care can be used for any of the individuals covered by the PSL law:

• A child: A biological, adopted or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis (“ In loco parentis ” means standing in the place of a parent, or acting as a parent to someone). This definition of a child is applicable regardless of age or dependency status;
• A parent: 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;
• A spouse;
• A registered domestic partner;
• A grandparent;
• A grandchild;
• A sibling; or
• A designated person: An individual identified by the employee at the time the employee requests PSL.

Kin Care Interaction with Mandatory Paid Sick Leave

When paid sick leave became mandatory in California, kin care seemed like it might no longer apply. However, kin care may still apply in certain situations. If an employer provides optional sick leave or PTO beyond what is required under the PSL law, it can limit employees to using only half of that additional sick leave as kin care. The designation of sick leave taken for kin care is made at the sole discretion of the employee.

For example, an employer may choose to provide a lump sum amount of five days or 40 hours of mandatory protected PSL for its employees, and then offer an additional amount of employer-provided PTO. In this situation, the employer must comply with both PSL and kin care obligations. Under this scenario, the employer would need to allow employees to use the full amount of carved out mandatory protected PSL to care for a family member (as defined under the PSL law) and also allow half of the amount of the additional employer-provided PTO to be used to care for a family member under the kin care law.

Paid Time Off (PTO) and Kin Care

PTO combines vacation and sick leave into one benefit. According to the Labor Commissioner, if PTO does not specifically designate part of the time provided as vacation and/or sick, then the entire allotted time will be considered sick leave for kin care purposes. Half of the total PTO accrual will be subject to kin care.

Penalties for Denying Kin Care

You cannot deny an employee the right to use kin care. You also cannot terminate, threaten to terminate, demote, suspend or discriminate in any manner against an employee for using or attempting to use sick leave to attend to the illness of a family member included in the kin care law. Violation can lead to an order of reinstatement and actual damages, or one day’s pay, whichever is greater, and any other relief a court may award.

It is unlawful for employers to count days off for kin care purposes as absences that can result in discipline, demotion or discharge. An absenteeism control program that counts kin care time off against an employee violates state law and subjects an employer to penalties.2

Kin Care and Uncapped Sick Leave Policies

In McCarther v. Pacific Telesis Group, the employer offered an uncapped sick leave policy.

The collective bargaining agreement (CBA) allowed employees to be compensated for any day they missed work due to their own illness or injury for up to five consecutive days in any seven-day period. The employees had no cap to their sick leave, did not formally accrue sick leave and didn’t have a bank of sick leave.

To prevent an employee from taking excessive sick days under the CBA, the CBA also specified an attendance management policy that subjected employees to progressive discipline if they had eight or more absences within a 12-month period with no extenuating circumstances (unless the absences were otherwise legally protected, perhaps by workers’ compensation laws or the FMLA).

The California Supreme Court looked to the plain language of the Labor Code, which mandates that employers providing sick leave allow employees to use accrued and available sick leave in “an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement” to care for an ill family member.

The state Supreme Court stated that the statute plainly limits the amount of sick leave that can be used for kin care purposes and that the “reach of the statute is limited to employers that provide measurable, banked amounts of sick leave.” An uncapped sick leave policy makes it impossible to determine the amount of compensated sick time an employee could be entitled to within the six months specified by the statute, and the state Supreme Court ruled that the employer was not required to allow employees to use up to one-half of the annual sick leave benefit for kin care.3

1. Lab. Code sec. 233