Cal-Peculiarities: How California Employment Law is Different 2022 Edition

36 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com policy that prohibits the child from attending the school or licensed child care provider, behavioral or discipline problems, closure or unexpected unavailability of the school or child care provider (excluding planned holidays), and a natural disaste r. 77 An eight-hour-per-month limit applies to leave for non-emergency activities . 78 E mployers must not discriminate against an employee for taking time off for these activities . 79 E mployers also must not discriminate against an employee who, at a teacher’s request, appears in school as the parent or guardian of a suspended pupil . 80 T he law defines “parent” expansively to include a parent, guardian, stepparent, foster parent, or grandparent of—or a person who stands in loco parentis to—a child . 81 2.11 Kin Care Leave Under the Healthy Workplaces, Healthy Families Act, all California employers must provide paid sick leave to all employees for their own or a family member’s illness or injury and other specified reason s. 82 (See § 2.14 below.) Meanwhile, under the “kin care” statute , 83 e mployers also must permit employees to use in a calendar year the amount of sick leave that accrues during six months, for certain purposes, including the diagnosis, care, medical treatment, or preventive care of any “family member”—a spouse, registered domestic partner, grandparent, grandchild, sibling, parent, or child. Both “parent” and “child” are defined very broadly to cover all varieties— biological, adopted, foster, step, ward, or in loco parentis . 84 Thus, for example, an employee who accrues six days of sick leave throughout a year may use up to three days of leave to care for family, while an employee who receives a grant of six sick days at the beginning of a year may use all six days of leave to care for family. In light of the paid sick leave law, which does not distinguish between time off for the employee’s own medical condition and time off to attend to a family member (each being a legitimate reason to use statutory paid sick time), the “kin care” rule has limited relevance. The rule applies practically only to grants of sick leave in excess of the statutory minimum of 24 hours (or 3 days) annually. Employee’s right to designate paid sick leave as kin care. As of 2021, the designation of sick leave taken as kin care is at the sole discretion of the employe e. 85 F or companies with absentee policies and paid sick grants that are more generous than the state mandate, the employee’s choice to designate paid sick as kin care (or alternatively to not do so), could affect the rate at which employees exercise protected leave and thereby determine if an absence to care for a sick family member is protected leave instead of a violation of an absentee policy. Accordingly, employers should await the authorization of the employee before designating an employee’s exercise of paid sick as kin care. PTO trap for unwary employers. Employers who provide paid time off (PTO) may unwittingly subject themselves to additional kin care requirements, as PTO (personal time off that can be taken for any reason, including illness) can be considered a form of additional sick leav e. 86 The California Supreme Court has ruled that the kin care statute does not apply to sick leave policies that provide for an uncapped number of compensated sick days for an employee’s own illness, but rather applies only to sick leave policies that provide for measurable amounts of accrued sick leave . 87 California employers must grant kin care leave to—and must not discriminate against—an employee who attempts to use kin care leave, and must not count that leave as an absence that may lead to discipline of the employe e. 88 Aggrieved employees are entitled to reinstatement and actual damages, or one day’s pay, whichever is greater. Employees who prevail in a court action are entitled to attorney fee s. 89 California employers must not deny an employee the right to use sick leave for kin care purposes and must not take discriminatory action against an employee for using—or attempting to exercise the right to use—sick leave for those purposes . 90