My employee requested time off to care for her neighbor who just had surgery. Do I have to grant her request?
Although a neighbor previously would have been excluded as a qualifying “family member” for whom an employee could take leave under California’s Paid Sick Leave (PSL) law, the law was expanded recently so that an employee can use their PSL time in this type of scenario.
AB 1041, which took effect on January 1, 2023, added a “designated person” to the list of qualifying family members for whom an eligible employee may take leave. And it wasn’t expanded just for PSL purposes — a “designated person” also was added to the California Family Rights Act (CFRA).
However, PSL and CFRA each have different definitions for “designated person.”
Paid Sick Leave
For PSL purposes, a “designated person” is defined as “a person identified by the employee at the time the employee requests paid sick days.”
This means an employee’s designated person can essentially be anyone of their choosing; however, an employer may limit an employee to one designated person per 12-month period for PSL, whether that is measured by calendar year, the employee’s hire date anniversary or some other method to measure the 12-month period for PSL.
PSL can be used for the diagnosis, care, treatment of an existing health condition, or preventive care for an employee or an employee’s family member, which now may include someone like your employee’s neighbor if they choose to designate them as such.
Also keep in mind that several California cities have local paid sick leave ordinances. Employers must comply with both state and local laws, and where they differ, employers must apply whichever one is more beneficial to the employee.
California Family Rights Act
Employees also can now use CFRA leave to care for a “designated person” with a serious health condition, but as stated above, the definition is not identical to the one used for PSL.
For CFRA leave purposes, a “designated person” means “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” Like with PSL, employers also can limit an employee to one designated person per 12-month period. That 12-month period, however, depends on how you choose to calculate it under your policy for administering leave.
Remember, for employees to be eligible for CFRA leave, they must work for a covered employer (that employs five or more employees), have worked for their employer for at least 12 months as of the time of taking the leave and have worked at least 1,250 hours in the preceding 12 months.
Assuming an employee is eligible and indicated the need to care for a qualifying member (which now may include a “designated person” as defined above), a medical certification is required to designate the leave properly as CFRA.
Additionally, if you also are covered under the federal Family and Medical Leave Act (FMLA) and the employee also is FMLA-eligible, remember that the FMLA will not run at the same time as this type of CFRA leave because a designated person is not a qualifying family member for purposes of FMLA.
Employers should include designated person as a qualifying family member in their PSL and CFRA policies. If you wish to limit an employee’s ability to name a “designated person” to once within a 12-month period, be sure to update each of your policies accordingly. The person an employee designates for PSL can be different from the person they designate for CFRA.
Sarah Woolston, Employment Law Counsel/Subject Matter Expert
CalChamber members can read more about CFRA and FMLA Qualifying Reasons and Permissible Usage of PSL in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
