Kin Care Discrimination

Federal laws do not prohibit discrimination based on an employee or job applicant's status as a caregiver or based on their family responsibilities. However, when kin care leave is denied by an employer that provides sick leave, California law does provide for a kin care discrimination lawsuit. If you were not provided with leave to care for a family member, or if you were treated adversely for taking sick leave to which you were entitled, you should discuss the circumstances with a California employment discrimination lawyer. The Nourmand Law Firm may be able to represent you in your claim for damages.

California law does not require employers to provide sick leave to their employees. However, if your employer does provide employees with sick leave, it must allow you to use the leave for certain specified reasons that are considered kin care. Under Labor Code section 233(a), an employer that allows sick leave for employees is supposed to allow an employee to use their earned and available sick leave entitlement in any calendar year, for an amount that is at least the amount of sick leave that would be earned during six months at the employee’s current rate of entitlement for specified reasons.

Your employer should not threaten to fire you, demote you, suspend you, or discriminate against you in any way for trying to use the sick leave to which you are entitled to address the illness or preventative care of a family member or other specified issues. Valid reasons for kin care leave are specified in section 246.5. Sick days are to be provided for treatment, care, or diagnosis for an employee or an employee's family member when there is an existing health condition. Leave should also be provided for victims of sexual assault, domestic violence, or stalking under certain circumstances. A family member can include a spouse, child, parent, registered domestic partner, grandchild, grandparent, or sibling. Biological, adopted, and foster relationships are included.

Moreover, your employer cannot mandate that a condition of your taking kin care leave is that you find a replacement worker to cover your days away. If your employer takes adverse measures against you, our attorneys may be able to represent you.

Your employer should not deny you the right to use your accrued sick days or discriminate against you for using them or trying to use them. It also should not suspend, demote, or otherwise discriminate against you for filing a complaint or cooperating with an investigation of kin care discrimination claims. For instance, if your cubicle mate needs to take sick leave days to take care of her spouse, who has leukemia, and the employer demotes her, you should not be demoted for cooperating with the investigation of her discrimination lawsuit.

Under section 246.5, there is a rebuttable presumption of illegal retaliation if your employer denies you the right to use your accrued sick days for kin care and discriminates against you within 30 days of certain events. These triggering events include your opposition to a policy or practice that is prohibited, your cooperation with a prosecution or investigation, or your filing of a complaint with the Labor Commissioner. Our California attorneys may be able to counsel you on whether you have a kin care discrimination claim.

This law has been limited by courts. For instance, the California Supreme Court has determined that the law only applies to employers that provided accrued increments of compensated leave to employees. In other words, the statute only covers employers that provide a set amount of sick leave.

If we can establish your claim for kin care discrimination, you should be able to recover certain damages. You are entitled to actual damages or one day’s pay, whichever is greater, along with reinstatement and equitable relief.

If you face adverse treatment or harassment because you took sick leave to take care of your family, you should consult a seasoned employment discrimination attorney. The Nourmand Law Firm represents clients in Los Angeles, San Bernardino, and Riverside Counties, as well as Oakland and Sacramento, among other areas. Complete our online form or call us at 310-553-3600.