The California Supreme Court recently determined that California’s “kin care” statute, which permits an employee to use accrued paid sick leave to care for sick relatives, does not apply to paid sick leave policies that provide for an uncapped number of compensated days off. In McCarther v. Pacific Telesis Group, 225 P.2d 538 (Feb. 18, 2010), a collective bargaining agreement entitled covered employees to paid time off for up to five consecutive days in any seven-day period for the employee’s injury or illness. There was no bank of paid days that accrued over time and no cap on the total number of days of permissible absence. Plaintiff employees contended that they were entitled to use paid sick leave to care for sick family members pursuant to California Labor Code Section 233, which permits employees to use accrued paid sick leave to care for sick relatives. The trial court disagreed, the Court of Appeals reversed and held for the employees, and the California Supreme Court reversed the Court of Appeals and found in favor of the employer.

The Supreme Court interpreted Section 233 to apply only to policies that provide a measurable, banked amount of sick leave that accrues over time, because Section 233 provides that employees must be permitted to use kin care for at least the amount of leave that would be accrued during a six-month period. The Court observed that Section 233 “cannot sensibly be applied” if the amount of compensated time for sick leave to which an employee might be entitled in six months cannot be determined. Therefore, because the sick leave provision in the labor contract provided no “accrued” sick days and no cap, Section 233 did not apply.

California employers should review their sick leave policies and practices to determine whether they conform to Labor Code Section 233 and this recent decision, keeping in mind that other leave requirements, such as the California Family Rights Act and/or Family and Medical Leave Act, may also impact an employer’s ability to discipline employees for taking time off to care for themselves or ill relatives.