The common view in California has been that an employer may never discipline an employee for using paid sick leave for “kin care,” but that view may change after the decision in McCarther v. Pacific Telesis Group.
Since 1999, California has required employers that provide paid sick leave to allow a portion of this leave to be used for “kin care,” meaning to attend to an illness of a child, parent, spouse or domestic partner. California also prohibits an “employer absence control policy” from counting kin care leave as an absence that may result in discipline or termination. It therefore has appeared that employers could not apply absence control policies, such as “no-fault” attendance policies, to kin care.
In a case of first impression, however, the First District Court of Appeals determined that employers are authorized to regulate kin care leave under the same guidelines used for sick leave. In other words, an employer may discipline an employee for use of kin care leave as long as its attendance policy treats kin care leave and sick leave in the same manner.
McCarther also expanded kin care leave beyond traditional accrued leave policies to include a policy that provided an indefinite number of paid sick days on an as-needed basis. The court took a broad view of the term “accrued” and in effect placed kin care obligations on any employer that provides paid sick leave.
As a result, employers that do not use a traditional accrued leave policy will want to review their policies to ensure compliance with kin care leave obligations. In addition, McCarther provides an opportunity for employers to review their attendance policies and consult with counsel about applying them to kin care leave in the same manner as they apply to sick leave.