California Allows Employees Leave for a “Designated Person” | ArentFox Schiff

Already permitting employees to take leave to care for a wide scope of family members, California now will allow them to use state family and medical leave and paid sick leave to provide care for a “designated person.” The term has a slightly different meaning between the two laws. These changes, enacted through Assembly Bill 1041, take effect on January 1, 2023.

This expansion of family and medical leave rights follows on the heels of Senate Bill 1383, enacted in 2020. That bill, effective on January 1, 2021, extended California’s family and medical leave requirements to employers with five or more employees (rather than with 50 or more employees), expanded the family members for whom leave may be taken beyond the family members that the federal Family and Medical Leave Act (FMLA) covers, and increased available leave when both parents of a child work for the same employer. Our 2020 alert on SB 1383 is available here.

Protected Leave to Care for a “Designated Person”

Currently, under the California Family Rights Act (CFRA), eligible employees may take job-protected leave to care for numerous family members who have a “serious health condition.” As a result of CFRA’s earlier expansion through SB 1383, an eligible employee may take family and medical leave under California law to care for the employee’s child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or state-registered domestic partner. In addition to biological relationships, a “child” and “parent” also include adoptive, foster, stepparent, and stepchild relationships, guardian and legal ward relationships, and the child of an employee’s domestic partner. A “sibling” is “a person related to another person by blood, adoption, or affinity through a common legal or biological parent.” In contrast, the federal FMLA allows leave to care for an employee’s child, parent, or spouse.

Now, an eligible employee will be able to use CFRA leave to care for a “designated person.” Under CFRA, AB 1041 defines a “designated person” as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The bill does not define “equivalent of a family relationship.” An employee may identify their “designated person” at the time the employee requests leave to care for that person. AB 1041 authorizes an employer to limit an employee to one “designated person” per 12-month period.

Under the Healthy Workplaces, Healthy Families Act of 2014, California’s paid sick leave law allows employees to use paid sick leave for diagnosis, care or treatment of an existing health condition, or preventive care for an employee or an employee’s “family member.” Currently, the law generally defines “family member” as an employee’s child, parent, spouse, state-registered domestic partner, grandchild, and sibling, including stepchild and stepparent relationships.

AB 1041 extends paid sick leave to care for an employee’s “designated person.” It defines the term slightly differently than with CFRA leave. For purposes of paid sick leave, a “designated person” means “a person identified by the employee at the time the employee requests paid sick leave.” This definition does not require the person be related by blood, or even a family-equivalent relationship. Employers may limit an employee to one designated person per 12-month period for paid sick days.

Reconciling AB 1041 With Other Laws

AB 1041 amended California’s CFRA and paid sick leave law. It did not, however, amend other related laws.

First, the legislation did not amend state Paid Family Leave (PFL) law. The PFL program allows eligible employees to receive a state-paid partial wage replacement benefit during some leave to care for a child, parent, spouse, state-registered domestic partner, grandparent, grandchild, or sibling with a serious health condition. PFL itself is not job-protected. It may or may not overlap with CFRA leave, depending on whether the leave also qualifies as CFRA leave. While an eligible employee now will be able to take CFRA leave to care for a “designated person,” that leave will not qualify for PFL benefits.

Second, AB 1041 did not expressly amend the state’s “kincare” law. Separate from, and predating, California’s paid sick leave law, the kincare law allows an employee annually to use half of the paid sick leave that the employee would accrue in a year for certain family members. As amended in 2016, the kincare law generally refers to the definition of “family member” in the state’s paid sick leave law. AB 1041 now may extend the kincare law to include a “designated person.”

In some places, employers will need to reconcile AB 1041’s change with local paid sick leave ordinances that have allowed employees to use paid leave for a designated person. For equitable reasons, when San Francisco adopted the first paid sick leave ordinance in 2006, it required employers to allow an employee without a spouse or registered domestic partner to designate a person for whom the employee could use paid sick leave to provide care. The ordinance required employers to allow employees to make a designation annually. Currently, San Francisco, Oakland, Berkeley, and Emeryville allow employees to use leave for a designated person. AB 1041, however, allows an employee to take leave to care for a “designated person” even if the employee has a spouse or registered domestic partner.

Next Step for Employers

AB 1041 represents a significant change for California employers with respect to family and medical leave and paid sick leave. Among their next steps, employers should review and update their policies to reflect these changes, as well as prepare to handle use of these leaves to care for a “designated person.” The two definitions of “designated person” are broad, as well as not entirely clear. They do not require any family relationship, nor that a “designated person” live in the same household as an employee. Employers must be prepared to track the use of CFRA and paid sick leaves to care for a “designated person,” as well as other allowed uses. The addition of another use of state CFRA leave, which does not overlap with federal FMLA leave, expands the possibility for an employee to use more than 12 weeks of family and medical leave in a 12-month period. Further, an employee’s ability to make an “on the spot” designation of someone also may pose challenges, as well as raise questions about authenticity or verification surrounding use of leave. Employers will be able to request a health care certification for CFRA leave use for an employee’s designation person, just as they may ask for a certification for use of leave for family members. Given the numerous legal issues with AB 1041 and related laws, employers should consult with the employment law counsel to comply.

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