(March 3, 2010) The California Supreme Court recently ruled in favor of an employer in a closely-watched “kin care” case.

Kin care is when an employee takes time to care for a sick child, parent, spouse, registered domestic partner or the child of a registered domestic partner.

In the case of McCarther v. Pacific Telesis Group, the issue before the court was whether Labor Code Section 233, which permits an employee to use accrued paid sick leave to care for ill relatives, applies to paid sick leave policies that provide for an uncapped number of compensated days off. The court held that contrary to the Court of Appeal, that Labor Code Section 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off.

The California Chamber of Commerce filed a “friend of the court” brief urging the court to overturn the appellate court’s decision. In its brief, the Chamber argued that employers would be forced to eliminate or reduce their existing uncapped sick pay programs — to the detriment of their employees, if the Court of Appeal’s decision was allowed to stand.

The case involved two plaintiffs, Kimberly McCarther and Juan Huerta, who worked for telecommunications companies. At issue was the collective bargaining agreement (CBA) that allowed employees to be compensated for any day in which they missed work due to their own illness or injury for up to five consecutive days in any seven-day period.

The employees had no cap to their sick leaves, did not formally accrue sick leave, and didn't have a bank of sick leave. In order to prevent an employee from taking excessive sick days under the CBA, the CBA also specified an attendance management policy that subjected employees to progressive discipline if they had eight or more absences within a 12-month period with no extenuating circumstances (unless the absences were otherwise legally protected, such as under workers' compensation laws or the Family and Medical Leave Act of 1993). Both employees took off five or more days to care for a sick relative.

For employers, this ruling means that if they offer a sick leave policy where employees do not accrue a bank of sick leave, and there is no cap on sick leave, an employee is not entitled to any protected kin care leave under California law.

Best Practices

The CalChamber urges businesses to follow best practices when dealing with kin care:

• Allow employees to use one-half of their annual earned sick leave or PTO for kin care, if it is available at the time of need.
• Make sure your supervisors and managers understand an employee's right to use sick leave or PTO for kin care.

Staff Contact: Erika Frank