New Sick Leave Law Time off for Caring for Family Members

QUESTION:  

One of my employees has no vacation time available, but would like to take the day off to care for her sick daughter.  Our District provides its employees several paid sick days each year.  Do I have to give her this time off?  If so, do I have to pay her, since it's not her own sickness for which she wants to take the leave?

ANSWER:

Under the existing Family and Medical Leave Act (and its California counterpart, the California Family Rights Act), if the employee is entitled to and has not exhausted her FMLA/CFRA leave, and if the sick daughter's condition rises to the level of a "Serious Health Condition" under the Acts, you will be required to grant the employee the requested time off.  Furthermore, as of January 1, 2000, changes to the California Labor Code will require an employer who offers its employees sick leave to permit the employee to utilize up to half of the annual sick leave allotment to care for a child, parent or spouse.  Therefore, as of the first of the year, your District will be required both to permit the employee to take the leave, as well as permit the employee to utilize a portion of available paid sick leave to do so.

BACKGROUND:

California's Governor, Gray Davis, recently signed into law a bill that will require employers to permit employees to use sick leave to care for a child, parent or spouse.  In any calendar year, any employee (to whom sick leave is provided) may use available accrued sick leave -  up to ½ of their annual allotment - to care for a family member.  Furthermore, employers are prohibited from denying the use of such leave to any employee, or taking any adverse employment against any employee for using or attempting to use available sick leave for this purpose.  Enforcement may be through the State Labor Commissioner's office, or through private civil actions for damages and includes attorneys' fees.

While both the new Sick Leave law and the existing FMLA/CFRA laws overlap in some areas, the new Sick Leave law differs from this existing law in several key elements.  First, the new law applies to all employers and all employees within California, without regard to number of employees, length of service or hours worked!  For example, while FMLA/CFRA protections do not begin until an employee has worked for the employer for at least a year there is no similar threshold for the new Sick Leave law.

Second, the language authorizing the use of the sick leave refers only to "attend[ing] to an illness. . . ."  This threshold appears to be much lower than the "Serious Health Condition" language which triggers the FMLA/CFRA coverage.  Therefore, an illness which might not trigger the medical leave and job reinstatement provisions of the FMLA/ CFRA may nevertheless require leave under the new law.  What's more, sick leave taken in accordance with this new law for any medical conditions that meet the qualifications for "Serious Health Condition" will (when properly designated as such) count against the employee's annual FMLA/CFRA entitlement.  On the other hand, leave taken for lesser conditions or illnesses will not count against the annual FMLA / CFRA allotment.

That having been said, an employee's right to take sick leave under the new law is not without limitation.  First, the employee may only use what they would normally accrue in a 6-month period (i.e. ½ their annual sick leave), and those days must already be accrued and on the books!  For example, on May 1, an employee who earns one sick day per month (12 days annually) would already have accured 4 sick days.  Assuming no prior use of sick days during that calendar year, that employee would be able to use those four sick days for the care of a family member.  If, however, in December that employee needs to again care for a sick family member, they would only be eligible for 2 more days regardless of the number of sick days available since their maximum use is ½ their annual sick leave – which in this example is 6 days a year.         

Also, an employee who has already exhausted paid sick leave is not entitled to additional time under this new law. 

If you have any questions regarding the coverage or application of this new law, please contact the Employment Practices Hotline at (650) 592-6160.

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.