California Kin Care Law: Employee Rights Explained
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What the Kin Care Law Means for You Right Now
Labor Code § 233, California’s kin care law, requires every employer that offers sick leave to let employees use up to six months’ worth of their accrued sick leave each calendar year to care for a qualifying family member. The employer cannot discipline, demote, suspend, or fire an employee for doing so (§ 233(c)), and cannot count that absence against the employee under any attendance point system (Lab. Code § 234). If your employer wrote you up, added a point to your attendance record, or fired you after you used sick days to care for a sick child, parent, spouse, or other covered family member, that conduct may be illegal. Remedies include reinstatement, damages, and attorney’s fees.
What Is the Kin Care Law in California?
The kin care law does not create new sick days. It unlocks sick leave you have already earned. If your employer provides sick leave, California law requires that employer to allow you to use that leave for family care, up to the amount you would accrue in six months at your current accrual rate per calendar year.
One feature that sets this law apart from similar protections: the family member’s illness does not need to be a “serious health condition.” Any existing health condition, or even the need for preventive care, qualifies. This is a significant distinction from the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), both of which require a serious health condition before leave is protected. Under the kin care law, a parent’s routine doctor’s visit or a child’s ear infection is covered.
For a broader overview of how these rights fit into California’s employee protection framework, see our guide to Essential Kin Care Law Rights For California Employees.
Which Employers Must Follow the Kin Care Law?
Any employer that provides sick leave is covered, with no minimum headcount. A two-person company with a sick leave policy must comply. This is a critical difference from CFRA, which covers only employers with five or more employees, and from FMLA, which applies only to employers with fifty or more employees.
How the Kin Care Law Differs from CFRA and FMLA
Dimension | Kin Care (Lab. Code § 233) | CFRA (Gov. Code § 12945.2) | FMLA (29 U.S.C. § 2601)
|
|---|---|---|---|
Employer size threshold | Any employer that provides sick leave | 5 or more employees | 50 or more employees |
Tenure requirement | None stated in the statute | 1 year and 1,250 hours worked | 1 year and 1,250 hours worked |
“Serious health condition” required | No. Any existing condition or preventive care qualifies. | Yes | Yes |
Amount of leave protected | Up to six months’ accrual per calendar year | Up to 12 weeks per year | Up to 12 weeks per year |
Job protection | Yes, via § 233(c) | Yes | Yes |
Labor Code § 233 is also explicit that using kin care leave does not extend or count toward any CFRA or FMLA leave entitlement. The laws operate independently.
Who Counts as a Family Member Under the Kin Care Law?
Under Labor Code § 245.5(c), the following people qualify as family members for kin care purposes:
- Child: biological, adopted, foster, step-child, ward, or child of a domestic partner
- Parent or guardian: biological, adoptive, foster, step-parent, parent-in-law, legal guardian, or anyone who stood in loco parentis to the employee
- Spouse
- State-registered domestic partner
- Grandchild
- Grandparent
- Sibling, including step-sibling
The qualifying reason under Labor Code § 246.5(a) includes the diagnosis, care, or treatment of an existing health condition, or preventive care, for any of these family members. The threshold is low by design.
Your Right to Designate Kin Care Leave: What AB 2017 Changed
Governor Newsom signed AB 2017 on September 28, 2020, amending Labor Code § 233 to address a gap employers were exploiting. Before AB 2017, some employers would re-characterize how a sick-leave day was recorded after the fact, overriding the employee’s stated reason and classifying the absence as unexcused.
After AB 2017, the statute says plainly: “The designation of sick leave taken for these reasons shall be made at the sole discretion of the employee.” That language belongs to the employee, not the employer. If you told your employer you were using sick leave to care for your parent, the employer cannot relabel that day as an unexcused absence or a chargeable occurrence under your attendance policy.
What Your Employer Cannot Do: Prohibited Retaliation Under the Kin Care Law
No Discipline, Demotion, or Termination (Lab. Code § 233(c))
Section 233(c) prohibits an employer from discharging, threatening to discharge, demoting, suspending, or in any manner discriminating against an employee for using or attempting to use sick leave to care for a qualifying family member. The protection covers the attempt to use leave, not just completed leave. An employee who notified their manager of a kin care absence and was fired before the shift even ended has a potential claim.
No Counting Kin Care Absences Under Attendance Policies (Lab. Code § 234)
Labor Code § 234 separately prohibits employers from using any “absence control policy” to count a kin care absence as an occurrence, point, or chargeable event that can lead to discipline. Attendance point systems and no-fault trackers are common in retail, warehouse, and food-service environments. Adding a point for a protected kin care absence is an independent violation of § 234, regardless of whether the employee is ultimately fired.
Common Employer Defenses, and How to Counter Them
When employees raise kin care retaliation claims, employers frequently respond with one of several standard arguments. Understanding these defenses before you file a complaint or consult an attorney helps you anticipate what the employer will say and what evidence counters it.
- “The employee never told us the absence was for family care.” Counter: Documentation matters. Texts, emails, or voicemails in which you mentioned caring for a sick child or parent establish that the employer had notice. Keep copies of all communications you sent around the time of the absence.
- “Our policy requires advance notice, and the employee didn’t follow procedure.” Counter: The statute does not condition protection on strict procedural compliance. If you gave reasonable notice under the circumstances, a rigid notice requirement cannot be used to strip you of kin care protection.
- “We disciplined the employee for other attendance violations, not kin care absences.” Counter: If any of the absences used in the discipline calculation were kin care absences, those cannot lawfully be counted under § 234. Pull your attendance records and identify each date. If even one protected absence was included in the point total that triggered your discipline, the employer’s defense weakens.
- “The employee’s family member’s condition wasn’t serious enough.” Counter: The kin care law has no “serious health condition” requirement. Any existing health condition or preventive care visit qualifies. This defense misapplies the CFRA standard to a statute that expressly does not require it.
- “The employee used more leave than the policy allows.” Counter: The kin care law sets a floor of up to six months’ worth of accrual per calendar year. An employer policy that permits less than this amount cannot override the statutory entitlement.
- “The termination was for performance, not attendance.” Counter: Timing is powerful evidence. A termination or written warning issued shortly after a kin care absence creates an inference of retaliation. Preserve emails, performance reviews, and any prior communications showing the employee was in good standing before the absence.
A practical note on documentation: write down what happened, when it happened, and who was present. Save every written communication with your employer about the absence. Identify any coworkers who witnessed relevant conversations. These steps are within your control before you ever speak with an attorney.
What You Can Recover If Your Employer Violated the Kin Care Law
Remedies Under Labor Code § 233(d) and (e)
An employee who proves a violation of Labor Code § 233 is entitled to the following remedies under § 233(d):
- Reinstatement to the same or a comparable position
- Actual damages or one day’s pay, whichever is greater
- Appropriate equitable relief
Under § 233(e), an aggrieved employee may file a complaint with the Labor Commissioner (Division of Labor Standards Enforcement) or bring a civil action in court. If the employee prevails in a civil action, the court may award reasonable attorney’s fees. That fee-shifting provision is meaningful: it allows employees to retain counsel for claims that might otherwise be too small to pursue alone.
Under § 233(f), these rights and remedies are cumulative and nonexclusive. A kin care retaliation claim does not prevent you from also raising other claims arising from the same facts, including wrongful termination or wage claims. If your employer’s conduct also involved unpaid wages, our article on California Wage Theft Laws explains those parallel protections. Where multiple employees at the same employer were subjected to the same attendance policy, coordinated claims may also be possible; our overview of California Employment Class Action Lawsuits explains how that process works.
An Illustrative Scenario
Consider this illustrative example, not drawn from any specific client. An employee at a twelve-person warehouse has an attendance point system under which five points triggers termination. She uses two sick days to take her mother to chemotherapy appointments and notifies her supervisor by text. Her employer adds two points to her attendance tracker, citing the absences as unexcused. She reaches five points two months later and is terminated. Under § 234, the two kin care absences could not lawfully be counted. If she can show that removing those two points would have kept her below the termination threshold, the employer’s defense that the termination followed neutral policy may fail. The text messages to her supervisor establish notice, and the attendance records establish which absences were counted.
What This Means If You Were Just Disciplined or Fired
If your employer wrote you up, added attendance points, or fired you after you used sick leave to care for a family member, you have two distinct enforcement paths: a complaint to the Labor Commissioner or a civil lawsuit. The remedies are real and include reinstatement, back pay, and the possibility of attorney’s fees if you win in court. Timing matters: do not wait to gather your records. Collect every communication about the absence, your attendance history, and any performance reviews from before the absence. If more than one employee at your workplace was affected by the same attendance policy, that pattern may support a coordinated claim. The first step is a consultation with an employment attorney who can assess your specific facts against the statute.
Frequently Asked Questions
Does the kin care law apply to my employer if there are only a few employees?
Yes. Labor Code § 233 applies to any employer that provides sick leave, with no minimum headcount. Even a two-person company with a sick leave policy is covered.
My family member’s illness isn’t serious. Does that matter?
No. Unlike CFRA and FMLA, the kin care law does not require a “serious health condition.” Any existing health condition or need for preventive care qualifies.
Can my employer require me to use sick leave in a certain way or relabel my kin care days?
No. After AB 2017, the designation of each sick day as kin care leave belongs solely to the employee. An employer who relabels a protected day as an unexcused absence is violating § 233(a).
What if I was written up but not fired?
A written warning or added attendance point can still be a violation. Section 233(c) prohibits any form of discrimination for using or attempting to use kin care leave, and § 234 independently prohibits counting protected absences under attendance policies, regardless of whether termination follows.
Can I claim attorney’s fees if I win?
If you prevail in a civil action under § 233(e), the court may award reasonable attorney’s fees. This is a court determination and not a guarantee, but it is a statutory basis that makes it viable to retain counsel even for smaller claims.
If you believe your employer violated California’s kin care law, contact Setareh Law Group for a confidential consultation. Our California employment attorneys represent workers across the state and can evaluate whether your employer’s conduct violated Labor Code §§ 233 or 234.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
🌐 Address: 420 N Camden Dr, Beverly Hills CA, 90210
Disclaimer: This article is general legal information about California’s kin care law and is provided for educational purposes only. It is not legal advice and does not apply to every situation. Reading this article does not create an attorney-client relationship with Setareh Law Group or any of its attorneys. Employment law outcomes depend on the specific facts of each case, and no result or recovery is guaranteed.
Sources and Additional Resources
Authoritative sources cited
- Labor Code § 233
- Lab. Code § 234
- Gov. Code § 12945.2
- Labor Code § 245.5(c)
- Labor Code § 246.5(a)
- Labor Code § 234
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