©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 37 biological, adopted, foster, step, ward, or in loco parentis.89 Additionally, Assembly Bill 1041 (effective January 1, 2023), which broadened the definition of “family members” under CFRA and HWHFA to include a “designated person” (defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship”) could be interpreted to apply to kin care requests. As noted above, a “designated person” may be designated by an employee once every 12 months. Accordingly, California employers are cautioned to broadly interpret who is considered a “family member” when addressing kin care requests.90 Kin Care Calculation Example. An employee who accrues six days of sick leave throughout a year may use up to three days of sick leave for kin care, while an employee who receives a grant of six sick days at the beginning of a year may use all six days of leave for kin care. 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 employee.91 For 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 leave.92 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.93 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 employee.94 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 fees.95 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.96 The Court of Appeal has rejected an argument that ERISA preempts the application of kin-care requirements for an employer that uses trusts to provide paid sick leave.97 2.12 Military Leave The California Military and Veterans Code contains sections comparable to the language in the federal USERRA, and also provides additional employee rights, especially for public sector employees, and protects service members for state call-ups. California employers must not discharge a returning employee who was on active military duty with the National Guard, except for cause, within one year after being restored to the position. Violation of the California statute is a misdemeanor.98
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