California Supreme Court Addresses Kin Care Leave
By Cindy Caplan
In McCarther v. Pacific Telesis Group, the California Supreme Court ruled that Labor Code Section 233 does not apply where the employer's sick leave policy provides for an uncapped number of paid sick days.
Pursuant to a collective bargaining agreement, Pacific Telesis provided up to five consecutive days of paid "sickness absence" in any seven-day period for an employee's own illness or injury. The company did not cap the amount of sick leave that may be taken by employees. Two employees filed suit against Pacific Telesis, alleging that its policy violated Labor Code Section 233 because employees were not compensated for kin care time off under the sickness absence policy.
Labor Code Section 233 provides that “[a]ny 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, to attend to an illness of a child, parent, spouse, or domestic employee of the employee.” The statute defines "sick leave" as "accrued increments of compensated leave."
The Court concluded that, under Pacific Telesis's plan, sick leave was not "accrued" within the meaning of Section 233. The Court further reasoned that it would be impossible to determine "the sick leave that would be accrued during six months at the employee's current rate fo entitlement" given the nature of the Company's plan. The Court concluded that Section 233 does not apply to policies in which the employer provides uncapped compensated sick leave. Thus, where a policy allows for unlimited or uncapped sick leave, the employer is not obligated to provide paid "kin care" leave. Employers who provide for a specific number of sick leave days per year remain obligated to allow employees to use half of their yearly allowance of paid sick leave to attend to a family member's illness.