Employee Kin Care Leave Protection Does Not Apply Where Paid Sick Leave Is Uncapped

 By Nancy N. Lubrano

February 19, 2010

In McCarther v. Pacific Telesis Group, Inc., the California Supreme Court ruled in favor of employer Pacific Telesis in holding that Labor Code section 233 does not apply where the employer's sick leave policy provides for an uncapped number of paid sick days. 

Labor Code section 233 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 partner of the employee."  Section 233 is commonly referred to as the "kin care" statute.

Pacific Telesis's sick leave policy did not "accrue" within the meaning of section 233 because it did not cap the amount of sick leave that could be taken by its employees.  Rather, the policy provided compensation for any missed work due to illness or injury for up to five consecutive days in any seven-day period.  There was no bank of accrued time or cap on how much sick leave an employee could take.  Therefore, the Court concluded, that section 233 did not apply.  Particularly, the Court reasoned that section 233 presumes that the amount of kin care leave available to an employee would be ascertainable, but that Under Pacific Telesis's policy it was not ascertainable because it did not "accrue."

Consequently, an employer who allows unlimited sick leave is not obligated to provide for kin care leave.  However, where employers do provide a set amount of sick leave per year – soon to be a mandated minimum of seven days per year under President Obama's healthcare reform – employers are obligated to permit employees to use half of their yearly sick leave to care for ill family members.