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In this third and final part of our series on recent leave legislation changes in California and the expected impact on absence management, we’ll review the state’s recent clarification of kin care law and victim leave laws, including employer notification requirements.

Kin Care Clarification

California’s Kin Care law (California Labor Code § 233) requires that employers providing sick leave to employees pursuant to a company policy must permit an employee to use a portion of that leave (in an amount not less than the sick leave that would be accrued during six months) for the following reasons:

  • Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s covered family member;
  • For obtaining relief if the employee is a victim of domestic violence, sexual assault, or stalking.

On September 28, 2020, Governor Newsom signed into law an amendment to the Kin Care law clarifying that the designation of a sick day as a kin care day “is at the sole discretion of the employee.” According to legislators supporting AB 2017, a lack of clarity on this issue has led to situations where employers have deducted time off due to an employee’s own illness from the employee’s dedicated kin care days without employee consent, thwarting the intent of the Kin Care law and leaving the employee without time off to care for a covered family member.

Prior to the amendment’s January 1, 2021 effective date, employers should review and update their leave policies and procedures to ensure employees make the call on when an absence is deducted as a personal sick day versus a kin care occurrence. Employers should also educate managers and human resources personnel responsible for tracking employee time away from work to ensure the appropriate process is followed.

Victim Leave Law Expansion

On September 28, 2020, Governor Newsom also signed into law AB 2992 which, among other things, expands job protections for employees who require time away from work for covered reasons related to their status as a victim of crime or abuse. The legislation, which becomes effective January 1, 2021, amends two sections of the California Labor Code that currently provide job-protected leave to employees who are victims of domestic violence, sexual assault, or stalking.

First, Labor Code § 230 prohibits employers from discriminating against or discharging an employee for taking time off to serve as a juror or appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. The law also prohibits an employer from discriminating against or discharging an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain relief, such as a restraining order, to help ensure the safety of the victim or the victim’s child. AB 2992 will expand the latter job protection to victims of any crime that constitutes a misdemeanor or felony in California that caused physical injury or that caused mental injury and a threat of physical injury, and employees whose immediate family member is deceased as a direct result of a crime.

Second, California Labor Code § 230.1 currently prohibits employers with 25 or more employees from discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off from work to seek medical attention for resulting injuries, obtain services from a domestic violence shelter, program or rape crisis center, to obtain psychological  counseling, or to participate in safety planning or other activities to increase safety. AB 2992 expands this type of job-protected leave to employees who are victims of any crime that constitutes a misdemeanor or felony in California that caused physical injury or that caused mental injury and a threat of physical injury, and employees whose immediate family member is deceased as a direct result of a crime. Pursuant to the amendment, eligible employees will also be permitted to use job-protected leave to seek services from a victim services organization or agency or to obtain mental health services related to the crime or abuse.

The legislation also alters and relaxes the certification that can be required by an employer to support a victim’s need for unscheduled leave under the circumstances described above, including deeming sufficient any “documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a[n authorized] purpose.” A police report, court order, or documentation from a licensed medical professional, healthcare provider, counselor, or victim advocate also constitute sufficient certification.

Employer Notification Obligations

Employers are required to notify employees in writing of their rights under California’s victim leave law upon hire and upon request by any employee. The Labor Commissioner must post a revised model notice describing the amended provisions of the law on or before January 1, 2022 to be used by employers for this purpose.

What Reed Group Is Doing

Although ReedGroup does not administer California kin care or victim leave for most clients, we continue to track and analyze leave-related legislation nationwide and alert our clients to relevant developments. Subscribe to our blog to receive timely alerts on the latest changes in the leave law landscape. If you missed the other parts of this series, you can find them here – Part 1 and Part 2.

ReedGroup has solutions for employers with 5000+ employees seeking assistance with absence management and compliance with state and federal leave laws. Let us know how we can help.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.