California Labor Code 233 Quick Info
Legally reviewed by: Jessica Anvar Stotz, JD, MBA
California Labor Code 233 provides guidelines for employees and employers regarding an employee’s sick leave used to take care of a family member with a health condition, including when the employee can use it and how much they can use at a time. It also provides a remedy for employees when employers refuse to let them use their sick days or otherwise violate a section of this code. Finally, it provides definitions for who a family member is under the Code.
California Labor Code 233 Explained in 90 Seconds
The first section of California Labor Code 233 states that an employer who provides sick leave for its employees must allow the employee to use the sick leave at the employee’s discretion so long as the sick leave is being used to care for a family member with a health condition. The minimum amount of time the employee may take out is equal to the amount of sick leave the employee would accrue in six months at their current rate. For example, an employee who receives eight hours of sick leave per month of employment would have a minimum of six days of sick leave to take out to care for a sick family member (8 x 12 = 96 total hours of sick leave per year, half of which is 48, 48/8(one day of work) = 6 days of sick leave).
California Labor Code 233 then says that employers cannot prevent employees from using their sick leave to take care of family members with health conditions. An employee whose rights under this Code are violated is entitled to being reinstated and actual damages or a day’s pay, depending on which is higher. Appropriate equitable relief is also available to the employee.
Labor Code § 233 According to the California Government
(a) Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, for the reasons specified in subdivision (a) of Section 246.5.The designation of sick leave taken for these reasons shall be made at the sole discretion of the employee. This section does not extend the maximum period of leave to which an employee is entitled under Section 12945.2 of the Government Code or under the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.), regardless of whether the employee receives sick leave compensation during that leave.
(b) As used in this section:
(1) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.
(2) “Family member” has the same meaning as defined in Section 245.5.
(3)(A) “Sick leave” means accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment for any of the reasons specified in subdivision (a) of Section 246.5.
(B) “Sick leave” does not include any benefit provided under an employee welfare benefit plan subject to the federal Employee Retirement Income Security Act of 1974 (Public Law 93-406, as amended) 1 and does not include any insurance benefit, workers’ compensation benefit, unemployment compensation disability benefit, or benefit not payable from the employer’s general assets.
(c) An employer shall not deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventive care of a family member, or for any other reason specified in subdivision (a) of Section 246.5.
(d) Any employee aggrieved by a violation of this section shall be entitled to reinstatement and actual damages or one day’s pay, whichever is greater, and to appropriate equitable relief.
(e) Upon the filing of a complaint by an employee, the Labor Commissioner shall enforce this section in accordance with Chapter 4 (commencing with Section 79) of Division 1, including, but not limited to, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive. Alternatively, an employee may bring a civil action for the remedies provided by this section in a court of competent jurisdiction. If the employee prevails, the court may award reasonable attorney’s fees.
(f) The rights and remedies specified in this section are cumulative and nonexclusive and are in addition to any other rights or remedies afforded by contract or under other law.
Employee Sick Leave Rights under Section 233
What “Kin Care” Entails Under California Law: “Kin care” under California law is the legal right that employees have to use their sick leave to in the aid of “[d]iagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.” Essentially, kin care is the ability for employees to use their sick leave to take care of themselves or their family when health issues arise. Under California law, “family member” includes children, spouses, and domestic partners.
Minimum Amount of Sick Leave for Kin Care Entitlement: As briefly discussed, there is a minimum amount of sick leave an employee must take if they are exercising their right to kin care. This amount must be at least equal to the amount of sick leave the employee earns in half a year at their current rate of sick leave gain. See “Explained in 90 Seconds” section for a concrete example.
Employee’s Sole Discretion in Designating Sick Leave for Kin Care Purposes: Employees have sole discretion in deciding when to use their sick leave for kin care. This means that as long as they abide by the rest of the Code, their employer must allow them to use their sick leave for kin care on request.
Anti-Retaliation Protections: As a part of California Labor Code 233, employers cannot retaliate against their employees who use their sick leave for kin care purposes. This includes threatening to demote or fire the employee, actually demoting or firing them, or discriminating against them in any other way.
Employer Obligations Under California Labor Code 233
Employer Responsibilities Regarding Sick Leave for Kin Care as Mandated by Section 233: In order to stay within the bounds described by California Labor Code 233, employers should make sure their employees can use their sick leave for kin care purposes. Employers should be careful not to infringe upon this right, as violations can be punished under California Labor Code 233.
How Sick Leave Policies Should Be Structured to Comply with the Law: Employers can take steps to ensure they stay within the bounds defined by California Labor Code 233 regarding sick leave. Employees should be able to access their accrual information (how much sick leave they have and how quickly they gain it) so they are aware of their options regarding kin care and sick leave. In general, keeping good records of this information, as well as of when employees use their sick leave, can help promote a more transparent and legally-sound work environment.
Best Practices for Handling Employee Requests for Sick Leave for Kin Care: Employers should be clear and straightforward with their employees regarding sick leave and kin care. Since employees are entitled to these benefits through California law, employers should communicate clearly what the law is regarding them and ensure that it is followed by all parties involved. Under no circumstance should the employer threaten to or actually discriminate against the employee for requesting sick leave for kin care.
Comparison
Similar to California Labor Code 233 is the federal Family and Medical Leave Act (FMLA). This federal law allows certain covered employees to take up to 12 weeks off work per 12 months (unpaid) to care for a family member with a health condition, care for a newborn, or care for themselves if they have the health condition, to name a few. There is also a separate section that permits up to 26 weeks off work if the person being cared for is a servicemember of the U.S. Military.
The primary difference between the FMLA and California Labor Code 233 is that the FMLA doesn’t latch onto existing sick leave an employee has at their place of work. Rather, it creates a totally separate 12-week period that employees can use for kin care or related purposes. The second main difference is that the FMLA covers some things that California Labor Code 233 does not, such as the birth of a child and the care it requires immediately afterwards.
Using Sick Leave Effectively
As an employee, it is important to know how to effectively use your sick leave. Whenever you decide to use it, communicate it clearly with your employer. This communication should include, to the best of the employee’s knowledge, how long they will be unable to work for. In the case of kin care, the employee may also need to provide some amount of detail regarding the care. If the employer is keeping good records, employees should have no trouble accessing their sick leave and ensuring they have enough accrued for their intentions.
Resources for Employees and Employers
- California Labor Code 233
- California Labor Code 246.5
- Family and Medical Leave Act
- California Department of Industrial Relations
- California Department of Industrial Relations: California Paid Sick Leave FAQ
Connect with an Attorney
California’s labor codes are put into place so that employees and workers are protected from misconduct by their employers. Under California Labor Code 233, employees are entitled to take sick leave to care for family members with health conditions. If you are an employee who has been denied this right by your employer, you may be able to pursue a claim against them and be compensated for your losses. LawLinq will connect you with an experienced employment attorney who knows the nuances of California law and who can help you get the compensation you deserve. Contact us today, either online or by phone at (855) 997-2588!
