"Kin Care" and the California Supreme Court

By February 19, 2010 Blog, Employment Law

The California Supreme Court has just decided that an employee’s right to use accrued sick leave to attend to the illness of a child, parent, spouse or domestic partner does not apply to all employer sick leave policies.  (McCarther v. Pacific Telesis Group Ct. No. 164692, 2/18/10)).  Whatever one may think was the intent of the legislature in passing Labor Code section 233, which requires employers who provide sick leave to allow employees to use a specified portion of that sick leave to attend to the illnesses of others described in the statute, the Supreme Court found that the words of the statute do not apply to a broad sick leave policy that provides for uncapped, compensated sick leave.
The plaintiffs in the Supreme Court case originally brought their lawsuit against their employer because they claimed they were denied the right to use any of their paid sick leave for the purposes intended by the statute.  Pacific Telesis’ sick leave policy did not provide for “accrual” at a specified rate.  Instead, employees were entitled to uncapped paid sick leave for a variety of purposes but there were limits on how much could be used at any one time (five days).  The policy was generous for employees, but it had never been used in connection with an employee caring for a sick parent, child, spouse or domestic partner.  In addition, because there were no caps, or an accrued “bank” of earned sick days, the number o days available was unlimited, subject to the utilization rules.  Even though the plaintiffs were not disciplined in any way for their absences to care for others, the employer’s policy on absenteeism might apply against someone taking leave days to care for another.
The Supreme Court analyzed and interpreted the words of the statute very carefully and concluded, in short, that because the employer’s policy was uncapped, there were no specific “accrued and available” sick leave days under its policy. The legislation was not intended, therefore, to cover all sick leave policies – only those that provide for an accrual of a specified number of days, thus providing means to the words of that allow an employee to use sick leave that “would be accrued during six months at the employee’s then current rate of entitlement.”  The Court explained its decision:
“Employers are not required to provide sick leave. 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. Indeed, defendants offer compensated personal days off, which may be taken to care for ill relatives — a policy of which plaintiff Huerta availed himself to receive one day of compensated leave to care for his ill mother. 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.”
The practical effect of the decision may be very limited:  since the statute did not apply to the generous, uncapped policy, the employer could restrict the right to use the sick leave days for specific purposes or specific periods of time, despite the guarantee in the statute.  On a broader level, the court determined that the legislature did not intend to have the statute apply to all sick leave policies, so its words were interpreted accordingly, and logically.  The legislature may reexamine what its intent was.  Pending further legislative developments, the rights granted under Labor Code section 233 are not available to employees who are entitled and subject to a policy providing uncapped, paid sick leave.
Stephen C. Gerrish, Employment Group