California Supreme Court Holds That "Kin Care" Paid Leave Statute Does Not Apply To Leave Policies That Allow An Unlimited Number Of Paid Days Off

Labor Code Section 233, sometimes referred to as the "kin care" statute requires employers that provide paid leave to an employee who is ill to permit an employee to use a portion of the employee's accrued and available paid sick leave to care for an ill parent, spouse, child, domestic partner, or child of a domestic partner. The amount of paid leave that can be used for that purpose is limited to the amount of paid leave that would be accrued during six months at the rate of accrual at the time the leave is taken.

On February 18, 2010, in McCarther v. Pacific Telesis Group, the California Supreme Court held unanimously that Labor Code Section 233, which permits an employee to use a portion of accrued paid sick leave to care for ill relatives or for a domestic partner, does not apply to employer paid sick leave policies that (1) do not permit employees to accrue or "bank" paid sick leave or that (2) provide as a practical matter an unlimited number of paid sick leave days.

The sick leave policy at issue in the case contained in a collective bargaining agreement between the employees' union and the employer allowed employees to take paid leave for up to five days in any seven day period subject to an attendance management policy intended to prevent abuse. The policy at issue provided no bank of paid sick days that accrued over time. The court held the "kin care" statute does not apply to that leave policy because the statute states it applies to "accrued and available sick leave entitlement, in an amount not less than the sick leave that that would be accrued during six months at the employee's then current rate of entitlement."

The court was careful to point out that "most California employers are not required [by law] to provide sick leave to employees," and that the "kin care" statute generally "applies only to employers that elect to do so."

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