California Supreme Court Resolves Employees Taking Off to Care For Ill Family Members
As a reminder the KinCAre law permits employees to use some of their accrued paid sick leave to care for ill family members. Sick leave that is used by an employee under this law cannot be counted against the employee under an employer’s absenteeism policy. Now, a recent decision by the California Supreme Court has clarified when the KinCare law applies and when it doesn’t.
The case in question invloved two employees who, according to company policy, were entitled to receive pay for any days off due to their own illnesses or injuries, not to exceed five days in a seven-day period. Employees did not accrue paid sick leave in a bank, and there was no set cap as to the amount of sick leave that an employee could take. Employees were not permitted to use sick leave to care for an ill family member. At the same time, and despite being paid for sick days, employees were subject to progressive discipline for excessive absences, including absences due to illness or injury. The Supreme Court ruled that the KinCare law applies to sick leave plans only if the employee actually accrues a set amount of sick leave in a given period of time. When paid sick leave is offered on an as-needed basis, the employer is not required to allow employees to use that leave to care for family members, and accumulated employee absences can be charged against employees under an absenteeism policy.
The decision is favorable for employers. If the employer has a sick leave policy that has a cap (example: the employee gets 5 sick days per year), once the cap has been exceeded then progressive discipline is appropriate. You have to be cautious if you have a policy that lets employees accrue sick time for every month worked, because the employee could be protected under the KinCare law for time taken off to care for ill family members.
