California’s "Kin Care" Statute Applies Only To Measurable, Banked-Time Sick Leave Policies

February 19, 2010

Summary

In its first decision interpreting California's "kin care" statute, the California Supreme Court ruled yesterday that employers may prohibit employees from using uncapped sick leave to care for family members.  In McCarther v. Pacific Telesis Group, the Court held that Labor Code section 233 applies only to paid sick leave policies that provide a measurable, banked amount of compensated sick time.

Details

In McCarther, employees were entitled to sick pay under a collective bargaining agreement if they missed work for up to five consecutive days in any seven-day period due to their own illness.  Any new period of absence for an employee's illness could trigger additional payments under the sick pay policy.  The policy did not provide for a bank of paid sick days that incrementally accrued over a period of time, nor did it include an overall cap on the number of sick days an employee could receive.  The only limit on paid sick time was the employer's attendance management policy, which provided discipline for excessive absenteeism.

When the employer refused to provide leave under the policy to care for sick family members, employees filed a lawsuit, claiming the refusal violated Labor Code section 233, commonly referred to as California's "kin care" statute.  The statute requires employers that provide paid sick leave to permit employees to use at least one-half of their annual accrued sick time to care for a sick child, parent, spouse or domestic partner.  The trial court dismissed the action, finding the kin care statute did not apply because the employer's sick leave policy did not provide a bank of sick days that accrued over time.  The California Supreme Court accepted the case after the Court of Appeal reversed the trial court's decision.

The Supreme Court refused to apply the kin care statute to the employer's sick time policy, holding that the reach of the statute is limited to sick leave policies that provide a measurable, banked amount of sick time.  The employer's policy did not meet this standard because sick time did not accrue in increments over a period of time, and the employees' maximum entitlement to sick leave was not limited.  The Court found that the unlimited nature of the employer's sick leave policy made it impossible to measure the maximum amount of sick time an employee would be entitled to receive under the kin care statute.

The Court's decision effectively creates a two-part test to determine whether an employer's sick leave policy is covered by the kin care statute.  First, the policy must provide paid sick time that accrues or accumulates in increments over a period of time.  Second, the paid sick time must be measurable in relation to the amount of sick time that is accrued in any six-month period.  The "measurability" prong of the test is crucial because it puts employers and employees on notice as to the minimum amount of kin care leave each calendar year to which an employee is entitled.

What This Means

The overall impact of this case is likely limited because most California employers provide sick time on a measurable, accrual basis.  This decision confirms that the kin care statute applies to all such banked-time sick leave policies.  However, where employers provide uncapped sick time, this decision gives employers the flexibility to prohibit or strictly limit employee use of sick leave to care for family members.

This E-Update was authored by Brenda Kasper and Lisa Frank.  For more information, please contact Ms. Kasper, Ms. Frank or any other Paul, Plevin attorney by calling (619) 237-5200.

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