"Kin Care" Law Applies To Sick Leave Policies Having Indefinite Number of Sick Days And Not Just To Tradition, Accrual-Based Policies

June 17, 2008
In McCarther v. Pacific Telesis Group, et al., A115223 (May 23, 2008), a California Court of Appeal for the first time analyzed the State's so called "kin care" leave law. Generally, paid sick leave is a benefit and not an employee entitlement. The employer chooses whether to have a policy that gives employees paid sick leave (the California legislature may soon transform this benefit into an entitlement via AB 2716.) However, if an employer provides sick leave to its employees, it must then comply with California's kin care law, which requires employers to allow employees to use "sick leave" to attend to the illness of a child, parent, spouse or domestic partner. Compliance generally includes treating sick leave and kin care leave consistently.

At issue in the McCarther case was the interplay between a collective bargaining agreement ("CBA") and the employer's paid sick leave policy with Labor Code sections 233 and 234. The employees argued that section 233 applied to the employer's "sickness absence" policy, which only covered an employee's own illness and allowed for an indefinite number of sick days. The employer argued that section 233 narrowly applied to only "traditional, accrual-based sick leave policies" and not to its "sickness absence" policy. The court agreed with the employees and found that the kin care statute applied to the employer's policy.

Pacific Telesis had two relevant documents at issue. First, a CBA negotiated between Pacific Telesis and the plaintiffs' union. The CBA referred to a "sickness absence" policy, which provided in relevant part, "All employees with at least one (1) year of service shall be paid for sickness absence beginning with the first scheduled working day of absence. Sickness absence payments shall be limited to a maximum of five (5) days in the 7-day period." Under the CBA, employees were entitled to receive full pay when absent from work if the absences were a result of their own illness. Furthermore, and important to this decision, under the CBA, there is "no cap or limit on the number of days that employees may be absent from work and receive full sickness absence payments." Employees "do not earn, vest, or accrue any particular number of paid sick days in a year" and do not have a bank of paid sick days they can accrue in increments over a period of time.

The second employer document at issue was Pacific Telesis' "attendance management" policy which the Company utilized to regulate absenteeism and tardiness. The policy generally provided that certain absences are counted as an "occurrence". The employer could discipline employees based on number of occurrences (with some exceptions) through a progressive discipline policy.

The first statute at issue, California Labor Code section 233 (kin care leave), states in relevant part:

(a) Any 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. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his of her child, parent, spouse, or domestic partner.

Section 233(b) states, "Sick leave means accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment."

The other statute relevant to this case, Labor Code section 234, provides in part, "An employer absence control policy that counts sick leave taken pursuant to section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of section 233. An employee working under this policy is entitled to appropriate legal and equitable relief pursuant to section 233."

In this case, plaintiff McCarther was absent for seven consecutive work days to take care of her two children. The employer did not pay her for her absences. Another plaintiff, Huerta, was absent from work for several days to attend to his ill mother. Again, the employer did not pay him for his absences.

The employer argued that kin care law only applied to "traditional, accrual-based" sick leave policies where an employee accrues a set number of sick days over a period of time, whose reach falls short of the CBA's "sickness absence" policy, which has no cap on the number of sick days an employee may be absent. The court concluded that the requirements of section 233 extend to the CBA's "sickness absence" policy despite its indefinite sick leave provision.

At the heart of the employer's argument that section 233 did not apply to its "sickness absence" policy was the assertion that the company would not be able to regulate kin care leave because of the prohibition contained in section 234. The employer argued that, theoretically, an employee could be out under the "sickness absence" policy virtually every day of the year and not be subject to their "attendance management" policy because of 234's prohibition. The court disagreed. The court stated that section 234 does not prohibit an employer's regulation of kin care leave taken by employees pursuant to section 233 provided that employers regulate sick leave and kin care leave in the same way.

The application of this case to California employers will be minimal for those employers who provide policies that give employees a definite number of paid sick days. Employers who have a sick leave policy with an indefinite number of allowed sick days should consult with counsel to determine whether their policies and practices should be revised. The court's decision regarding section 234 could have a significant impact by allowing employers to impose discipline for excessive kin care absences so long as the employer regulates sick leave and kin care leave in the same way.

This article was written by Shelline Bennett, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Shelline is a Partner in the Fresno office and can be reached at (559) 256-7800 or at sbennett@lcwlegal.com. For more information regarding the information above or our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.

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