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California Supreme Court holds "kin care" law does not apply to unlimited sick leave policies
February 22, 2010
Employment Law Alert
Author(s): Paul R. Lynd

California's kin care law allows an employee to use sick leave to care for family members. Now, the California Supreme Court clarifies that the law does not apply to all sick leave policies. More generous policies allowing uncapped paid sick leave do not require kin care leave.

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Interpreting the reach of California’s “kin care” law, the California Supreme Court has held that the law does not apply to all sick leave policies. The court held the law does not cover policies providing for an uncapped, or unlimited, amount of paid days off. Employers with such policies are not obligated to allow employees to use paid sick leave to provide “kin care” to family members. The decision in McCarther v. Pacific Telesis Group was unanimous.

California’s kin care law

California law does not require employers to provide paid sick leave to employees. (A San Francisco ordinance mandates employers there to provide paid sick leave.) Yet, some employers who choose to provide paid sick leave must comply with California’s kin care law.

Effective in 2000, California Labor Code section 233 requires employers providing paid “sick leave” to permit employees to use a portion of the leave to care for certain family members. The law defines “sick leave” as “accrued increments of compensated leave” for use because of the employee’s illness, injury, or medical condition; for obtaining professional diagnosis or treatment; or for other medical reasons, such as medical appointments. In addition to paid leave specifically termed “sick leave,” the law’s definition also may include other types of paid leave, such as paid time off (“PTO”), if the employee allows it to be used for the above purposes.
 
In each calendar year, the law requires employers to allow an employee to use half of the sick leave that an employee would accrue in that year to care for family members for the same reasons.  Specifically, the terms at issue in McCarther require an employer providing sick leave to permit an employee to use “the employee’s 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 rate of entitlement” to care for family members. Family members for whom an employee may use sick leave are the employee’s child, parent, spouse, state-registered domestic partner, and child of a state-registered domestic partner. 

Labor Code section 233 further prohibits an employer from denying an employee the right to use sick leave to provide kin care, as well as from taking adverse actions against an employee for using or attempting to use sick leave for kin care. The law also imposes restrictions on absence control policies. Labor Code section 234 provides that any absence control policy counting sick leave taken for kin care as absence that may lead to discipline, discharge, demotion, or suspension is “a per se violation” of the law.

Different types of sick leave policies are not all covered

Employers who provide paid sick leave benefits may have many different types of policies. Many employers provide a sick leave bank, through which employees may take a specified number of days or hours of sick leave per year. The employees either accumulate gradually, or are granted at once, the specified amount of available sick leave. Under such policies, sick leave may or may not be carried over year to year. Unlike vacation or PTO, California law does not treat sick leave as “wages” that either must be used or paid. Other employers may provide a bank of PTO, with a specific number of accrued and banked days or hours per year that may be used either for vacation or sick leave. Under the McCarther decision, the kin care law applies to these types of policies.

Some employers, however, provide for uncapped, or unlimited, sick leave. These more generous policies provide for paid sick leave. However, unlike other types of policies, they do not include a definite cap or limit on the amount of paid sick leave that an employee may use. Until the McCarther decision, some employees argued that these policies may result in providing unlimited kin care leave as well. Now, the California Supreme Court has resolved this issue and held that the kin care law does not apply to unlimited policies at all.

The McCarther decision

In McCarther, the employer’s policy provided for sick leave at full pay for up to five consecutive days in a seven-day period. The employer did not have any cap on the amount of paid sick leave available.  If an employee returned from paid sick leave, he or she could go out again for up to five more paid sick days at a time. As long as an employee returned again, this process could repeat without limit.  There was no bank of paid sick days that the employees incrementally accrued over time, or a particular number of sick days that the employees vested, earned, or accrued under the sick leave policy. The employer did not pay sick leave for absences to care for family members, leading to a class action lawsuit under the kin care law.

Taking a literal reading of the kin care law, the California Supreme Court recognized that the kin care law “does not apply to any and all forms of compensated time off for illness.” Rather, it applies only to “‘sick leave’ as defined by the statute.” The court concluded that this type of uncapped, or unlimited, policy did not fit within the law’s meaning of “sick leave.” The court underscored that the kin care law defines “sick leave” as “accrued increments of compensated leave,” with a clear limit on the amount of kin care as “an amount not less than would be accrued during six months.” With its reliance on the term “accrued,” this language “indicates that the reach of the statute is limited to employers that provide a measurable, banked amount of sick leave.”
 
Because, unlike other types of policies, unlimited sick policies do not provide any measurable or banked amount of sick leave, they are not covered by the kin care law. The court emphasized that the legislature sought to allow employer “to ascertain, with precision, an employee’s kin care leave entitlement” by basing it on an employee’s sick leave accrual in a six-month period each year. With an unlimited sick leave policy, the court recognized that it is “impossible” to determine how much sick leave an employee might be entitled to use in a six-month period because there is no “bank of sick leave hours or days to which the employee is entitled.” Thus, the law “cannot sensibly” be applied to unlimited sick leave policies. Therefore, the court concluded that the kin care law does not apply to these policies, meaning that employers with such policies do not have to allow sick leave use for kin care.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.