In recent years, many California public agencies of all sizes have developed absence control policies to manage employee abuse of sick leave and other types of leaves. Generally speaking, these policies track each employee’s leave usage and establish various procedures, such as performance improvement plans and/or discipline, in the event an employee’s leave usage is deemed excessive and/or abusive. At the same time, California law continues to expand employees’ rights to sick leave, as well as employees’ rights to use sick leave for preventive care and on behalf of family members. As a result of this expansion, your absence control policy may not be compliant with California’s “Kin Care” leave laws.
Effective January 1, 2016, California’s Kin Care leave laws now give employees the right to take half of their annual sick leave to care for not only ill family members but also themselves.[i] Also, the term “family member” now includes spouses, children, parent in-laws, and grandparents, and Kin Care leave may be taken to care for family members with more minor illnesses, such as common colds, or for serious health conditions, such as those covered by the Family Medical Leave Act (“FMLA”) and/or the California Family Rights Act (“CFRA”).[ii] For more on the broad definitions of “Kin Care” and “Protected Sick Leave” under California law, see this October 2015 post.
It is a paradox: As public agencies attempt to hold employees more accountable for excessive absenteeism, California law is simultaneously creating broader leave rights for California employees. One unintended result is that employer absence control policies that fail to exclude all the new forms of protected leave may infringe on employee leave rights. Indeed, under California Labor Code section 234, it is a violation of California law for an employer absence control policy to count Kin Care leave as an absence that may lead to or result in discipline, discharge, demotion, or suspension. Also note that the Labor Commissioner has opined that any paid time off policies that directly or indirectly allow time off in the event of illness are sick leave policies and may be covered by California’s Kin Care leave laws.
Below is an example of Labor Code section 234 in practice:
Under her MOU, Nancy accrues twelve paid sick days per year. Under California’s Kin Care law, Nancy is entitled to use 6 of those days for the purposes of Kin Care (or Protected Sick Leave). Between January and March, Nancy uses sick leave for the following: three (3) sick leave days to take her registered partner’s mother to doctor’s appointments for various ailments and preventative care; one (1) sick day to take her foster child to the hospital for a broken knee; two (2) sick days to treat her own common cold; and one (1) sick day to take her biological child to various medical appointments.
Nancy’s employer has an Absence Control Policy that analyzes employee attendance every three months. Under the Policy, employees who take more than six (6) sick days in a three-month-period are subject to discipline. Per the terms of the Policy, Nancy was excessively absent for the period of January through March due to the seven sick days she took. However, the employer’s absence reporting system does not distinguish between protected and non-protected sick leave. Here, six of Nancy’s sick days qualify as Kin Care and/or Protected Sick Leave. (Remember: Protected Sick Leave now includes leave to care for the employee’s own common cold and is also protected as Kin Care!) Thus if the employer follows the law and counts only Nancy’s one non-protected sick leave day as an absence that could lead to discipline, Nancy’s leave usage is no longer excessive under the Policy.
Nancy’s employer must change its Policy to appropriately exclude leave protected under California’s Kin Care law from absences that lead to discipline. Her employer should also implement an absence reporting system that differentiates between protected and non-protected leave. If Nancy’s employer had disciplined her for using Kin Care leave rights pursuant to the Agency’s absence control policy, the Agency’s policy would violate Labor Code section 234.
In summary, employers must exclude Kin Care leave from the type of leave that counts toward excessive absenteeism. First, employers must understand the full extent of leave protected under California’s Kin Care laws. Second, employers may need to implement new systems for tracking all the various forms of protected Kin Care leave. Third, employers need to treat Kin Care leave differently from non-protected leave, such as vacation, when applying absence control policies. And finally, employers may need to draft new absence control policies that expressly exclude protected leave, including Kin Care leave, from the type of absence that is counted toward excessive absenteeism.
[i] See Cal. Lab. Code section 233(a), incorporating Cal. Lab. Code section 246.5.
[ii] See Cal. Lab. Code sections 245.5(c) and 246.5.