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Home | Weekly E-Alert Articles | California Supreme Court Resolves Ki . . .

California Supreme Court Resolves KinCare Issue
February 24, 2010
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As every California employer knows, our state's employment laws are unique. One unique feature is the KinCare law — which permits employees to use some of their accrued paid sick leave to care for ill family members. Sick leave that is used by an employee under the KinCare law cannot be counted against the employee under an employer's absenteeism policy.

A recent decision of the California Supreme Court clarifies when the KinCare law applies and when it doesn't.


How do your company's sick leave policies relate to other family and medical leave laws? Find out by joining us on March 17 for the 90-minute webinar: Family Leave: How To Avoid "Gotchas" in California; Sample Policies You Can Adapt To Your Workplace.

Register now »

Find out more »


Employees Kimberly McCarther and Juan Huerta brought a class action lawsuit against Pacific Bell and other affiliated companies. Per company policy, employees were entitled to receive pay for any days off due to their own illnesses or injuries, not to exceed 5 consecutive days in a 7-day period.

Employees did not accrue paid sick leave in a bank, and there was no set cap as to the amount of sick leave that an employee could take. Employees were not permitted to use sick leave to care for an ill family member. At the same time, and despite being paid for sick days, employees were subject to progressive discipline for excessive absences, including absences taken due to illness or injury.

The employees argued that the companies' sick leave and absenteeism policies violated the KinCare law. Disagreeing with the appellate court, the Supreme Court ruled that the KinCare law applies to sick leave plans only if the employee actually accrues a set amount of sick leave in a given period of time. When paid sick leave is offered on an as-needed basis, the employer is not required to allow employees to use that leave to care for family members, and accumulated employee absences can be charged against employees under an absenteeism policy.

We'll have more about this case and about sick leave and KinCare in an upcoming issue of California Employer Advisor.


Do You Know About the Special Family Leave Laws for California Employers?

Dealing with family and medical leave requests can cause more headaches for employers than almost any other HR issue.

It's doubly difficult in California, because you're forced to comply with both the federal FMLA and the state CFRA. And the two don't always agree:

  • Under federal rules, you can ask employees why they're taking paid leave — but you can't ask in California unless the workers are requesting sick leave.
  • California passed its own law governing leave for pregnancy-related disabilities that, combined with other types of family leave, can mean up to 29 weeks of combined time off.
  • Federal FMLA forms allow doctors to indicate a diagnosis showing why an employee needs leave, but California law forbids this unless your employee consents. (You're even prohibited from asking for second opinions, in some cases.)
  • Under California law, your workers may request leave to care for registered domestic partners — but not under FMLA.
  • One California rule says that, if both parents work for you, you can limit their combined leave for a child's birth, adoption, or foster placement to 12 weeks in a 12-month period. But that contradicts another state law that forbids discrimination based on marital status.

Join us on March 17 for a 90-minute webinar specifically for California employers. As an added bonus, you'll receive sample policies that you can adapt for your California workplace to avoid these leave "gotchas." You'll learn:

  • How to comply with the basic rules governing family and medical leave in California
  • The key areas where FMLA and CFRA regulations don't mesh — and what you should do in these situations to avoid legal trouble
  • The impact of 2009's sweeping FMLA changes on California employers, from the new "exigency" military leaves to changes in notice requirements
  • What you're now allowed to do in the state to document and verify the medical details about a worker's leave request
  • How you should handle pregnancy-related leave requests to comply with both federal and state rules
  • The current state rules governing leave requests to care for domestic partners (e.g., the effect of the current Prop 8 court battle on these rules)
  • How you can review and adapt the sample policies included with this webinar to sidestep FMLA/CFRA worries like a pro

Register now »

Find out more »

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