Although California employers are not required to provide sick leave to their employees, any California employer providing sick leave must allow an employee to use one-half of his/her accrued and available leave entitlement to care for their sick child, parent, spouse, domestic partner, or domestic partner’s child. This is known as “Kin Care” and, unlike other family leave laws; it covers small employers and does not require the “kin” to have a serious illness.
Who Qualifies as “Kin”
Sick leave may be used to attend to the illness of an employee’s child, parent, spouse, domestic partner, or the child of a domestic partner. These “kin” are defined as follows:
- Child – a biological, foster, or adopted child, a stepchild, legal ward, domestic partner’s child, or an in loco parentis child. The law does not require the child to be a minor.
- Parent – a biological, foster, or adoptive parent, a stepparent, or a legal guardian. Parents-in-law and grandparents are not “parents” for purposes of Kin Care.
- Spouse – a person to whom an employee is legally married.
- Domestic Partner – California’s domestic partnership law defines domestic partners as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” To have a valid domestic partnership, partners must share a common residence; not be married or in a domestic partnership with another person; be at least 18 years old and competent to consent to a domestic partnership; be of the same gender or, if not, at least one partner must be over the age of 62; and file a Declaration of Domestic Partnership with the Secretary of State.
Use of Sick Leave or PTO
In any calendar year, the amount of sick leave available for Kin Care may not be less than the sick leave accruing during six months at the employee’s current rate of entitlement. Employers, however, need not allow employees to use sick leave that has not accrued or that has already been used. Any restrictions on the use of sick leave by an employee also apply to the use of sick leave for Kin Care.
Nothing in the law requires employers to permit sick leave days available for Kin Care to carry over into the following year. Kin Care also does not extend the amount of leave time to which an employee is entitled under the FMLA or the California Family Rights Act.
If PTO may be used for sick leave under an employer’s leave policy, half of PTO may also be used for Kin Care.
Uncapped Sick Leave Plans are not Covered
The California Supreme Court has ruled that “Kin Care” does not apply to uncapped sick leave policies that provide for an unlimited number of compensated days off. In other words, an employer who has an uncapped sick leave policy does not have to allow employees to use sick leave to care for family members.
An employee who is wrongfully denied the right to use sick leave or is discharged, threatened to be discharged, demoted, suspended, or discriminated against for using sick leave to care for a family member is entitled to reinstatement and actual damages or one day’s pay, whichever is greater. Appropriate equitable relief is also available.