Key Takeaways

• A slight change to California Labor Code § 233 grants employees the sole discretion to designate the type of sick leave they are taking

• This aims to prevent an employer’s intentional or erroneous designation of an employee’s usage of sick days as “kin care”

• Any employee aggrieved by a violation of this labor code remains entitled reinstatement and actual damages or one day’s pay and to appropriate equitable relief

As always, fall was a busy time for California Governor Gavin Newsom as he signed into law a slew of new bills.  One of these, AB 2017, merely added a single sentence to existing Labor Code § 233, but that single sentence still merits attention as it explicitly gives the employee the sole right to designate the type of sick leave they are taking.

Specifically, under the existing Labor Code § 233, more commonly referred to as the “Kin Care” law, employers must allow employees to take up to half of their accrued sick leave to care for a family member (thus, “kin care”).  “Family member,” under this provision, follows the definition provided in Labor Code § 245.5, which includes the employee’s child, parent or guardian, spouse or domestic partner, grandparent, grandchild, and sibling.

Under the new law, the designation of the sick leave taken under this labor code is at the sole discretion of the employee.  The primary purpose of this law is to prevent an employer’s intentional or erroneous designation of an employee’s usage of sick days as kin care, thus depleting kin care leave. Accordingly, any employee aggrieved by a violation of this labor code remains entitled reinstatement and actual damages, or one day’s pay, whichever is greater, and to appropriate equitable relief.

Employers should take care to apprise their employees of this change.

For more information or immediate guidance, contact:

• Jin Oh
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of the Employment and Labor practice