Court of Appeal Interprets California's Kin Care Law
On May 23, 2008, the First Appellate District issued its decision in McCarther v. Pacific Telesis Group, interpreting California Labor Code section 233, or California's so-called "Kin Care" law. Labor Code section 233 requires that if employers provide sick leave for their employees, employers must also allow the employees to use their "accrued and available" sick leave, in "an amount not less than the sick leave that would be accrued during six months" at the employee's then-current sick leave accrual rate, to attend to the illness of the employee's child, parent, spouse, or domestic partner. Section 233 also defines the terms "child" and "parent" very broadly.
In the McCarther case, two plaintiffs sued a number of defendants (all alleged to all be divisions of SBC Communications, Inc. and operating under the same policy), in a putative class action, claiming that the defendants did not pay them for absences they took to care for ill family members in violation of section 233. At issue was the defendants' "sickness absence" policy contained in a collective bargaining agreement, under which employees were paid for absences for illness or injury, in an amount up to five-day increments, after one year of service. The defendants' "sickness absence" policy differed from traditional sick leave policies, in that there was no cap or limit on the amount of sick leave but sick leave did not earn, vest, or accrue to the employees. The trial court granted the defendants' summary judgment motion, finding that Labor Code section 233 did not apply because the sickness absence payments were not "sick leave" as defined by section 233 as "accrued increments of compensated leave." The Court of Appeal reversed, finding that section 233 applied to sick leave to which the employee had become entitled, regardless of whether that sick leave is actually banked or formally accrued.
While this decision may not have new implications for employers with traditional sick leave policies or employers without sick leave, it is an important reminder to employers to ensure that sick leave policies are drafted and interpreted in compliance with section 233.