Alerts and Updates

California Court Holds That Unlimited Paid Time Off Under a Sick Leave Plan Must Be Available for "Kin Care"

June 6, 2008

A California Court of Appeal held that paid sick leave under the provisions of two companies' collective bargaining agreements must be available for use by employees for "kin care" purposes. McCarther v. Pacific Telesis Group, et al., (First Appellate District, May 23, 2008).

Under the collective bargaining agreement (CBA) in question, after an employee completed a full year of service, he or she became eligible for paid leave under a "sickness absence" policy. The policy was extremely generous — it provided eligible employees with full pay when they were absent from work due to their own illness or injury. Eligible employees could receive up to five consecutive paid days in a seven-calendar-day period. The CBA provided that there was no cap or limit to the number of days that employees could be absent from work and receive full sickness absence payments. The employees did not earn, vest or accrue any specific number of paid sick days per year. In essence, once the employee became eligible (after a year of service), he or she might have an unlimited number of paid "sickness absence" days available to him or her, provided that the sickness absence was caused by the employee's own illness or injury.

The same collective bargaining agreement also contained an "attendance management" policy. Under this policy, unless exempted, an employee absence counted as an "occurrence." If an employee had a certain number of occurrences within a specified period of time, he or she might be subject to discipline. Absences protected by certain statutes, such as the Family and Medical Leave Act, would not be counted as "occurrences."

This case arose when two employees who were covered by the CBA took time off to care for ill family members. Neither employee received sickness absence pay, since the triggering event was a family member's illness, rather than an illness or injury of the employee.

Before 1999, persons employed in California did not have any legal entitlement to use employer-provided paid sick leave to care for family members. In 1999, the state legislature adopted Labor Code section 233, which (as now amended) provides that any employer that does provide paid sick leave to employees must allow employees to use in any calendar year their "accrued and available" sick leave time to attend to the illness of a child, parent, spouse or domestic partner of the employee. The statute further provides that the amount of the sick leave time that an employer must allow for "kin care" shall be not less than "the sick leave that would be accrued during six months at the employee's then current rate of entitlement." In a traditional sick leave system, under which the employee accrues a certain number of sick days per month, this typically is interpreted to mean that the employee can use up to half of his or her annual number of sick days to care for family members, provided that he or she has actually accrued that number of days.

Labor Code section 234 provides that an employer's attendance policy that counts sick leave taken for kin care purposes as an absence subject to discipline is unlawful. However, Labor Code section 233 also provides that all conditions and restrictions placed by an employer upon the employee's use of sick leave for his own illness also apply to the use of sick leave for the purpose of kin care.

The contractual provision in the collective bargaining agreement did not provide for accumulation of a specific number of days per month, or even per calendar year. It basically provided unlimited paid sick days to an employee once he or she had the required tenure.

The issue in McCarther was whether Labor Code 233 applied to the sickness absence policy and whether the two plaintiffs should have received paid days for time they took to care for ill family members. The defendants argued that Labor Code 233 did not apply. They noted that the specific language of Labor Code 233 referenced "accrued" sick leave several times. The defendants noted that the plan in question was not a traditional "accrual" system and therefore, they argued, Labor Code 233 did not apply. They also noted that given the unlimited nature of the plan, it would not be possible to determine the number of days per year that had to be allowed for kin care, since the statutory language referred to the employer's obligation to allow an employee to use the number of days that would "accrue" over a six-month period for kin care.

Although the court of appeal did not specifically decide how much kin care time had to be provided under the contract at issue, it engaged in a lengthy analysis of the meaning of the word "accrue." The court sided with the plaintiffs, who noted that one definition of "accrue" was "to come into existence as a legally enforceable claim." The court held that a "periodic accumulation over time" was not the only meaning of "accrue," as was urged by the defendants. The appellate court held that the trial court's granting of summary judgment in defendants' favor had been erroneous.

What this means for California employers: The case underscores the importance for all employers with California employees to revisit their sick leave policies. If the employer has a policy that provides employees with a set number of paid sick days per year, it will be obligated to allow eligible employees to use half of their annual allotment for kin care purposes (provided, of course, that the time is accrued and available). Those who have policies or contracts providing unlimited paid sick time should reevaluate such programs. Some employers have very loose and informal sick time practices. The McCarther case demonstrates that California courts are extremely aggressive in enforcing the rights of employees. Employers that have allowed unlimited time off (whether paid or not) for employees' own illnesses should be cautioned that they may be required to provide significant amounts of time off for kin care.

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