“Kin Care” Statute Does Not Apply to Employers Who Provide Uncapped Sick Leave

In California, an employee is entitled to use accrued sick leave to care for a relative who is ill. The governing law is section 233 of the state Labor Code, commonly known as the “kin care” statute. In McCarther v. Pacific Telesis Group, the California Supreme Court concluded that the kin care statute does not apply to programs where the amount of sick leave is uncapped. For example, if an employer allows an employee to take unlimited sick leave, the employee cannot use those sick days to care for a sick relative under section 233. The uncapped program in the McCarther case allowed employees to be compensated for days they take off due to illness, subject to a rule that an employee could not be off for more than five consecutive days in a seven day period. Once an employee returns to work following a sick leave absence, the leave may be triggered again if the employee gets sick or is injured. There is no limit to the total number of days the employee can be off work, but the company did impose an attendance policy, so that if an employee missed too much work, a progressive discipline program would come into play. (All of these rules were negotiated between the employer and the union representing the covered employees.) The issue in McCarther was whether an employee working under such a regime could invoke “kin care” under section 233 and use sick leave to care for a relative who is ill. The court held that the employee could not do so, noting that the kin care statute only applies in situations where an employee can “bank” (or “accrue”) a given number of sick days for later use. In the McCarther case, as noted above, there was no accrual of sick leave; instead, the employer allowed employees to take an unlimited number of paid days off, subject to certain conditions. As an aside (and in a footnote) the court observed that there is no state statute requiring California employers to provide sick leave, although there are some local ordinances that include such a requirement. A copy of the court’s opinion is attached.

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