My employee wants time off from work to care for her mother. Am I required to give her time off?
Under California law (Labor Code § 233), employers who provide paid sick leave are now also required to permit employees to use up to one-half of their annual sick leave accrual to care for ill family members. Labor Code § 233 prohibits an employer from denying an employee the right to use this family sick leave or retaliating against an employee for doing so.
The family sick leave mandate extends only to an employee’s “child, parent, or spouse,” which includes stepchildren, adopted or foster children, wards, stepparents, foster parents and guardians. “Family members” does not include parents of the employee’s spouse. It does, however, include registered domestic partners.
The statute provides that “all conditions and restrictions placed by the employer upon the use by an employee of sick leave shall also apply” with respect to family sick leave. Therefore, if an employee is required to provide a doctor’s note evidencing his or her own illness, a doctor’s note could be required with respect to the family member for whom the employee takes sick leave. Similarly, an employer can impose the same notice requirements for family sick leave usage as applied to employee sick leave. Moreover, if employee sick leave is not allowed for illnesses such as gum disease, smoking or obesity, family sick leave probably can be limited to the same extent.
How much family sick leave can an employee take each year? The maximum number of days of family sick leave that an employee is entitled to use each calendar year is the lesser of: (i) all of the employee’s accrued unused sick leave; or (ii) the sick leave that would be accrued during six months at the employee’s then-current rate of employment. An employer is not required to follow the second option.
If, as an employer, I fail to allow my employee to take family sick leave, what can I be sued for? As stated earlier, an employer CANNOT deny an employee the right to utilize family sick leave, NOR can an employer RETALIATE against an employee who has utilized family sick leave. Therefore, an employee who has a valid claim against an employer is entitled to reinstatement and actual damages or one day’s pay day, whichever is greater. Other possible remedies a court may award to an employee include reasonable attorneys’ fees, compensatory damages and punitive damages.
As an employer, what should I do?
Employers need to first assess their current sick leave policies and determine if they are too generous. If they are, then an employer can do one of two things: (i) Reduce the annual rate of employee sick leave accruals, which will proportionately reduce the family sick leave they must make available; or (ii) Provide all or a portion of sick leave through an exempt sick leave arrangement, such as an insured or ERISA plan.
Next, employers must decide what aspects of the law they want to incorporate into their current plans. They need to decide such issues as clearly defining the family members to which the family sick leave will apply (within the law), whether the family sick leave policy will apply to non-California employees, etc.
Finally, the law does not require employers to notify their employees of the change in the law. However, it is a good idea to do so.
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