The California Supreme Court agreed with the employer’s position that the kin care law did not apply to the sickness policy.
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Paid Leave Update:
California Supreme Court
Limits Kin Care Law
By Christopher W. Olmsted
California has a leave law known as “kin care.” It allows employees to use ½ of their annual sick leave entitlement to attend to the illness of a child, parent, spouse or domestic partner. What if a company does not offer an accrued sick leave benefit, but instead offers sickness absence policy, which provides for an uncapped number of paid days off for illness? The California Supreme Court addressed this question in a case titled McCarther v. Pacific Telesis.
Time Off To Care For A Sick Child
Ms. McCarther is an employee of Pacific Telesis and is subject to a union collective bargaining agreement. The CBA includes a sickness absence policy, which provides for an uncapped number of paid days off for illness so long as each instance of absence continues for no longer than five consecutive day
Ms. McCarther was absent for seven days to take care of her ill child. The company did not pay her for this absence because she herself was not ill.
The employee filed a lawsuit challenging this policy. She claimed that it was a violation of California’s kin care law.
The employer disputed her entitlement. It claimed that the CBA sickness policy did not provide “accrued” leave and therefore it was not subject to the kin care law.
Kin Care Law
Section 233, commonly referred to as the “kin care” statute, provides that any employer who provides sick leave for employees shall permit an employee to use ½ of the entitlement (six month’s worth) to attend to an illness of a child, parent, spouse, or domestic partner of the employee.
The California Supreme Court agreed with the employer’s position that the kin care law did not apply to the sickness policy.
The court reasoned: “It is true that defendants’ employees are entitled to compensated time off for illness; however, that amount of compensated time is not banked, nor can it be calculated in six-month periods. Defendants’ sickness absence policy provides that employees may be compensated for time off due to illness for up to five consecutive days and must seek alternate forms of compensation under short- or long-term disability programs if the illness or injury lasts for more than seven days. Thus, an employee’s ‘current rate of entitlement’ can be measured only in seven-day periods (in which an employee would be entitled to up to five days of compensated time off for illness), but cannot be measured in six-month periods as section 233 requires. Accordingly, section 233 does not apply to sickness absence policies like defendants.”
“Employers are not required to provide sick leave,” observed the court. “Many employers elect to do so, and many do so in the form of an accrual-based system. Employers may choose to refuse employees the right to use uncapped sick leave to care for relatives, although employers are certainly not precluded from doing so.” The court concluded: “There are employers, like defendants, that elect to provide an uncapped compensated sick leave policy. We conclude that section 233 does not apply to those types of policies.”
Further Resources:
Barker Olmsted & Barnier California and Federal Leave of Absence Chart. Email Chris Olmsted at cwo@barkerolmsted.com for your complimentary copy.
More Legal Update articles.
Download entire March 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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