Pacific Telesis Case Answers Novel Sick Leave and Kin Care Questions

Prior to 1999, California employees had no right to use employer-provided paid sick leave to care for a sick family member, sometimes referred to as “kin care” leave, without the employer’s agreement. In 1999, the Legislature adopted Labor Code § 233, which, as amended, states in relevant part:

(a) Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee's accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner....
...
(b)(4) "Sick leave" means accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment for any of the following reasons: (A) The employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition of the employee. (B) The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee. (C) The absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination.

In McCarther v. Pacific Telesis Group (2008) __ Cal.4th __, the question was whether section 233's requirement that employers allow their employees to use "sick leave" to attend to an illness of a child, parent, spouse, or domestic partner, applies not only to traditional sick leave policies, but also to a "sickness absence" policy under which employees earn the use of five-day increments of compensated leave in the event of illness or injury, subject to the employer's attendance management policy. The Court of Appeal found the statute applicable, regardless of the name or description of the policy.

Plaintiffs’ appeal presents a pure question of law. Labor Code section 233 requires employers to allow their employees to use “sick leave,” as defined in section 233, to attend to an illness of a child, parent, spouse, or domestic partner, so-called “kin care” leave. Plaintiffs argue that section 233 applies to the “sickness absence” policy to which they are subject as employees of their respective defendant companies. Defendants argue that section 233 applies to “traditional accrual-based sick leave policies” only, and not to the “sickness absence” policy. We conclude that section 233 applies to the policy, and reverse the trial court’s judgment.

...the requirements of section 233 extend to the “sickness absence” policy because, pursuant to the policy, defendants provide “accrued increments of compensated leave . . . to an employee as a benefit of the employment for use by the employee during an absence from the employment” due to illness or injury. (§ 233, subd. (b)(4).) We base our conclusion on the plain and commonsense meaning of the statute’s text. The trial court erred in granting defendants’ motion for summary judgment and denying plaintiffs’ motion for summary adjudication.

You can download the full text of McCarther here in pdf or word format.

As an added bonus, the opinion contains this enjoyable footnote concerning the definition of the word "accrue":

The extensive debate calls to mind a passage in Lewis Carroll’s Through the Looking Glass, in which Humpty Dumpty explains his use of a word to Alice. “When I make a word do a lot of work like that, said Humpty Dumpty, I always pay it extra.” (Carroll, Tenniel and Gardner, The Annotated Alice (2000), p. 213.)

We're not sure when or where, but someday, we are going to figure out a way to cite to that footnote.

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