Banking Kin Care: Employer Kin Care Leave Obligations Arise Only When Policies Provide Accrual-Based Sick Leave

California has a “kin care” statute, Labor Code section 233, which requires that employees entitled to accrued sick leave can use some of it to care for ill relatives.On February 18, 2010, in McCarther v. Pacific Telesis Group, the California Supreme Court ruled that section 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off. In other words, the Court concluded that the kin care statute does not apply to all forms of compensated time off for illness, but only to “sick leave” as defined by the statute.

The Employer’s Sick Leave Policy

Pursuant to a collective bargaining agreement (CBA), Pacific Telesis provides paid leave to employees who miss work because of their own illness or injury for up to five consecutive days of absence in any seven day period. Employees who return to work following such an absence are again eligible for paid leave for their own illness or injury. Pacific Telesis employees do not incrementally accrue, or “bank,” any paid sick days over time, and there is no cap on the amount of sick leave that may be taken by employees. The CBA also provides for six paid, personal days off per year.

The Plaintiffs’ Claims

Two employees sued Pacific Telesis in a lawsuit alleging that its sick leave policy violated Labor Code section 233. The first plaintiff, Kimberly McCarther, missed seven consecutive workdays to care for her ill children and was not paid for her absence. The second plaintiff, Juan Huerta, missed five consecutive days to care for his ill mother, one of which he requested to be paid pursuant to the personal day off policy. Plaintiff Huerta was not paid for the other four days of absence. The plaintiffs claimed that Labor Code section 233 entitled them to paid kin care leave for these absences.

Labor Code Section 233—The Kin Care Statute

The kin care statute provides that “[a]ny 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 employee of the employee.” “Sick leave” is defined as “accrued increments of compensated leave.”

The Supreme Court’s Decision

Analyzing the text of section 233, the Supreme Court noted that the statute limits the amount of sick leave that can be used to care for an ill family member to “an amount not less than the sick leave that would be accrued during six months.” Based on this language, the Court concluded that kin care obligations apply only to employers “that provide a measurable, banked amount of sick leave.” Otherwise, implementing kin care obligations would be unmanageable for employers; determining the amount of compensated time for sick leave to which an employee might be entitled within six months could not be calculated, and thus the amount of time an employee would have for kin care leave could not be determined. As the Legislature intended to provide employers with a means of administering kin care, applying section 233 to paid leave policies that make an employer’s calculation of the employee’s kin care entitlement impossible would be illogical and contrary to the Legislature’s intent.

The Court further noted that, because an employee is entitled only to the “accrued and available” portion of sick leave for kin care, the use of the word “accrued” must refer to an accumulation over time. Other potential definitions for “accrued” would render “available” meaningless in the context of the statute.

The Court noted that Labor Code section 234 further supports an interpretation of section 233 that limits kin care obligations to banked sick leave programs. The Court explained that section 234, which prohibits an employer from “disciplin[ing], discharg[ing], demot[ing], or suspen[ding]” employees for using section 233 kin care leave, would otherwise allow employees to take an unlimited number of compensated kin care days.

What the McCarther Decision Means for Employers

For employers with uncapped sickness absence programs, or even uncapped vacation or leave policies that are intended to be used for sickness absences, the McCarther decision establishes that section 233 does not mandate kin care obligations. For employers with banked sick leave programs, kin care leave remains a real obligation that must be administered by providing kin care 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, i.e., one-half of an employee’s yearly accrual. If an employer includes sick time in a generic paid time off policy, one-half of that total PTO annual allotment must be provided for kin care.

For more information, contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.