By Stacey Sommerhauser, SPHR, PHRca, SHRM-SCP
Hopefully you’ve heard by now employers need to allow employees to designate a person to whom they may provide care for illnesses, serious health conditions or preventative care for under the California Family Rights Act (CFRA) and CA Paid Sick Leave (PSL). But who can this designated person be? Can it be my roommate? Yes, it could. Can it be my second cousin once removed? Yes, it could. Can it be my UPS delivery person? Yes, it could. And where is the limit for Pete’s sake?
When the Governor signed AB 1041 earlier this year the list of family members who an employee may take protected leave to care for expanded, and can we say, drastically. I say drastically because a designated person could be any number of people as noted above. However, each employee’s family makeup could look different and this law allows employees to care for loved ones that may not have been possible prior to January 1, 2023.
Here are the nuances of each protected leave law:
- Under CFRA a designated person is defined to mean an individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the leave is requested.
- Under CA PSL a designated person is defined to mean a person to be identified at the time PSL is requested. There is no requirement for the designated person to be related by blood or be the equivalent of a family relationship with the employee when using PSL.
So, when an employee is taking PSL, they may use such time to care for the UPS delivery person. However, it would be unlikely that the employee could take CFRA to care for the UPS delivery person, unless the UPS delivery person is related by blood or whose association with the employee is the equivalent of a family relationship.
The passing of this bill changed the list of family members under Labor Code Section 245.5, which trickles down to other paid sick leave plans you may or may not have. Say what? In 2020, with the passing of AB 2017 (aka the Kin Care Law) if an employer provided sick leave for employees, employees must be allowed to use accrued available sick leave to attend to the illness of a family member. And because Labor Code Section 245.5 added a designated person to the list of family members, if you have any type of paid Supplemental Sick Leave plan (name of the plan isn’t important), an employee must be allowed to designate a person to care for while using accrued Supplemental Sick Leave.
There is one piece of good news, an employer may limit an employee to one designated person for CFRA and one designated person for PSL per 12-month period.
Everyone should update their CFRA and PSL policies, and possibly a Supplemental Sick Leave plan, to reflect a designated person as a family member. Please reach out to your HR Consultant should you need further assistance.