• State "Kin Care" Statute Does Not Apply to Uncapped Sick Leave Plans, California Supreme Court Rules
  • March 26, 2010 | Author: Mark S. Askanas
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • The California Supreme Court, in a unanimous decision, has held California’s “kin care” statute does not apply to employer sick leave policies that provide an uncapped or unlimited amount of paid leave to employees.  McCarther v. Pac. Telesis Group, No. S164692, (Cal. Feb. 2, 2010). 

    The state “kin care” statute, Section 233 of the state Labor Code, requires employers to permit employees to use one-half of their accrued paid sick leave in any calendar year to care for the employee’s ill relatives.  In McCarther, because the employer’s policy permitted employees to use sick days as needed, with no accrual or banking of unused sick days, the policy did not fall within the “kin care” statute and its one-half requirement, the Court found.

    The Facts

    Plaintiffs Kimberly McCarther and Juan Huerta worked for SBC Services, Inc., and Pacific Bell Telephone Company, respectively.  They both were members of the Communication Workers of America, which had entered into a collective bargaining agreement (“CBA”) with the employers.  The sick leave policy under the CBA provided for up to five consecutive days of paid time off for employees’ own illness or injury in a seven-day period.  Each time an employee returned to work from an absence the entitlement would renew.  The CBA also provided employees each year with six paid personal days off that they may take for any reason.

    Unlike other sick leave policies, however, this policy did not provide for a bank of paid sick days accrued incrementally over a period of time.  The policy also did not cap the total number of days employees could be absent each year.  Employees were not paid for absences to care for ill family members. 

    Finally, the CBA contained an attendance management policy with a schedule of progressive discipline for employees failing to meet attendance standards.  Absences for sickness were subject to the attendance management policy, but personal leaves of absence were not.

    In 2004, McCarther was absent for seven days to care for her children.  She was not paid for this absence and did not request to be paid under either the sick leave policy or personal leave policy.  McCarther was never disciplined for any absences related to caring for a sick family member. 

    Also in 2004, Huerta was absent for five days to care for his mother.  He requested that one day of that absence be paid as a personal day.  He was never disciplined for his absence. 

    McCarther and Huerta filed a class action lawsuit against the employers, alleging that the employers violated the “kin care” statute by failing to pay them sick leave for their absences to care for family members.  The employers requested summary judgment, which the trial court granted . 

    The plaintiffs appealed, and the Court of Appeal reversed.  It found the CBA’s sick leave policy fell within the “kin care” statute, Section 233 of the Labor Code.  The employers appealed.

    The Supreme Court Decision

    Examining the statute’s language, the Supreme Court disagreed with the Court of Appeal, finding the sick leave policy at issue was outside the “kin care” statute.  Specifically, the Supreme Court noted that Section 233 permits employees to use up to six months (i.e., one-half) of their annual accrued paid “sick leave” to “attend to an illness of a child, parent, spouse, or domestic partner of the employee.”  The definition of “sick leave” is “accrued increments of compensated leave.”  The Supreme Court concluded that, by its terms, “the reach of the statute is limited to employers that provide a measurable banked amount of sick leave.” 

    As it was “impossible [in this case] to determine the amount of compensated time off for illness to which an employee might be entitled in a six month period and, thus, impossible to determine the amount of time an employee could use for kin care,” the Supreme Court found Section 233 did not apply to the policy.  The employers’ policy did not provide for a bank of paid time off.  Rather, it permitted employees up to five days of sick leave for each instance of sickness; once an employee returned from sick leave and has worked for one day, the employee would be entitled to another five days of sick leave.

    The only limitation on sick leave was the employers’ attendance management policy.  The Supreme Court observed that, if Section 233 applied to the policy at issue, the employers could not apply its attendance management policy to kin care.  Consequently, employees would be able to claim as kin care “far more compensated time off” than they would be entitled to claim for their own illness.  This, the Court determined, would be “contrary to the plain intent of Section 233.”  Accordingly, the Supreme Court concluded Section 233 did not apply to an uncapped sick leave policy and reversed the Court of Appeal.


    This case confirms that the California “kin care” statute applies only to sick leave plans that permit employees to accrue paid time off benefits.  It is not applicable to non-accrual, uncapped sick leave plans.  Employers should consult with employment counsel to determine whether their sick leave plans are affected by the California Supreme Court’s determination