California employers should take note that this week, the California Supreme Court limited benefits offered under California's kin care laws and held that kin care benefits do not apply to uncapped sick leave plans.

California Labor Code section 233 requires California employers that provide sick leave to allow an employee to use a portion of this leave to care for a sick child, parent, spouse, or domestic partner. At issue in McCarther v. Pac. Telesis Group (S164692, February 18, 2010), was Pacific Bell's "sickness absence" policy that provided an unlimited amount of sick leave, pursuant to a collective bargaining agreement. That policy provided a maximum of five days in a seven-day period, with the entitlement renewing each time the employee returned to work. Other than this restriction, the policy had no cap on the amount of sick days an employee could use.

The suit was filed in the Alameda County Superior Court in 2005 by two Pacific Bell employees, on behalf of themselves and all others similarly situated. The plaintiffs argued that the company violated California employment law by refusing to let them use paid sick time to care for ill family members. Pacific Bell argued that its policy did not cover absences due to the illness of family members, nor did it include language giving employees paid absences for that reason. Furthermore, the company argued that state law applies to "traditional accrual-based sick leave policies" only and that the company's policy, in contrast, does not allow for "accrued increments" because employees do not "bank" a particular number of allowed sick days earned over the course of the year.

Pacific Bell won summary judgment, which was overturned by the Court of Appeal on the basis that the word "accrued" in Labor Code section 233 had a broader legal definition than that proposed by Pacific Bell and refers to something that is earned but not yet due or paid. The California Supreme Court disagreed and reversed the ruling. The California Supreme Court found that the kin care provisions of Labor Code section 233 only apply to employers who provide "accrued increments of compensated leave" and that "the reach of the statute is limited to employers that provide a measurable, banked amount of sick leave." Of note, the court recognized that where the sick leave policy was indefinite, kin care cannot be applied as it would be "impossible to determine the amount of compensated time off for illness to which an employee might be entitled in a six-month period."

California employers should review their sick leave policies and consult outside counsel to determine if an amendment is necessary.