PUBLICATIONS

Paid Sick Leave Requires “Kin Care” Leave, Too

6/5/2008

The California Court of Appeals recently interpreted California’s “Kin Care” Law (Labor Code 233) in McCarther v. Pacific Telesis Group, 2008 DJDAR 7620 (May 23, 2008). This Labor Code section provides: “Any 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 partner of the employee.” The basic point of this Labor Code section is that an employee may take up to half of her available sick leave to care for ill relatives.

In McCarther, a class of employees sued seven large companies known as the Pacific Telesis Group. Under their collective bargaining agreements with their employees, these defendant employers had unusually generous sick leave policies, which allowed employees who have worked for any of the covered companies for one year to take five days of sick leave in any seven day period – with no limits on total sick leave taken. Theoretically, an employee could be out for five days, come back for a day, and go out on leave for another five days – indefinitely. Pacific Telesis did not extend its generous policy to absences for “kin care.” It argued that the Kin Care Leave Law did not apply because sick leave under its unique policy did not “accrue” periodically, over time, which is the way it interpreted the statute.

The Court of Appeal rejected this argument. It concluded that the Kin Care law plainly applied to the theoretically unlimited sick leave policy of the Pacific Telesis employer group, relying on the California Supreme Court’s oft-repeated “public policy to broadly construe protective statutes regulating the workplace in favor of employees.”

In a more helpful development for employers, however, the court also ruled that employers remain free to regulate kin care leave, so long as the employer applies the same rules to an employee’s sick leave. In the Pacific Telesis case, this ruling meant that the employer could impose absence control rules on kin care leave in the same way that it imposed such rules on an employee’s sick leave. Thus, so long as the absence was not otherwise protected (such as under the FMLA, CFRA or disability discrimination laws), the employer could count the absence for purposes of taking disciplinary action.

If employers provide paid sick leave, then they should consider putting specific time limits on the amount of sick leave available, and they should review their policies and practices to ensure that kin care leave is subject to the same rules or restrictions as leave for an employee’s own sickness.