Prior to 2016, Labor Code Section 233 provided employees an entitlement and protection to use accrued and available sick leave (including paid time off (PTO) leave that can be used for sick leave purposes) in an amount no less than that accrued over a six-month period in a calendar year to care for a parent, child, spouse, or registered domestic partner who was sick. This law was frequently referred to as the “kin care” law.
Following the 2015 implementation of the Paid Sick Leave Law (Labor Code Section 245, et. seq.) and its protections for additional sick leave uses (including the employee’s own need to use sick leave), Labor Code Section 233 was amended in 2016 to broaden its protections to any sick leave use covered under the Paid Sick Leave Law. Instead of just being limited to protecting sick leave use to care for a family member who is sick, Section 233 expanded those protections to the following sick leave uses provided in the Paid Sick Leave Law:
Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee;
Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee’s family member (parent, parent-in-law, child, spouse, registered domestic partner, grandparent, grandchild, or sibling); or
For various specific purposes as provided in Labor Code Sections 230 and 230.1 for an employee who has been the victim of domestic violence, sexual assault, or stalking.
One unintended drawback of this expansion is that the sick leave use now protected under Labor Code Section 233 is not just limited to care for covered family members as was the case with the prior version of the law. As a result, where the first one-half of an employee’s annual sick leave accruals (e.g., the first 48 hours of sick leave where 96 hours are accrued annually) used were protected under Section 233, if such protected sick leave was used for the employee’s own need for sick leave, any additional sick leave used later in the calendar year to care for a covered family member would be technically unprotected.
To address this issue, AB 2017 amends Labor Code Section 233 to allow employees the sole discretion to specify whether to designate used sick leave as being taken for one of these protected reasons under the law. For example, an employee can now indicate that sick leave taken for their own illness not count towards the one-half of their annual sick leave accruals protected under Labor Code Section 233, so the employee can then have such protected sick leave available later for other purposes. In such circumstances, any sick leave not designated by an employee for protection under Labor Code Section 233 would then be technically unprotected and subject to the impacts of an employee’s absenteeism policies and procedures.
Employers should review and revise their sick-leave policies to determine how they apply the protections of Labor Code Section 233 towards an employee’s sick leave use during a calendar year to incorporate the new ability for an employee to designate such sick leave use as protected under this law. In addition, employers should also implement sick leave tracking procedures to better differentiate between an employee’s sick leave use that is designated as protected under Labor Code Section 233 versus any such other sick leave used by the employee.
(AB 2017 amends Section 233 of the Labor Code.)