February 23, 2010
The California Supreme Court ruled unanimously that California’s "Kin Care" rules, which require employers that provide paid sick leave to permit employees to use a portion of the leave to care for sick family members, do not apply to sick leave policies providing an unlimited number of paid sick days. McCarthur v. Pac. Telesis Group, __ Cal. 3d ___, No. S164692, 2010 WL 547321 (Cal. Feb. 18, 2010). The Kin Care rules only apply to paid sick leave policies that provide a "measurable, banked amount of sick leave."
Generally, California employers are not required to provide paid sick leave (except in San Francisco, which has a local ordinance requiring paid sick leave). However, Labor Code Section 233 requires employers that chose to provide paid sick leave to permit employees to use up to six months of their annual sick leave accrual to attend to an ill child, parent, spouse or domestic partner, subject to all the same conditions and restrictions on the use of paid sick leave for the employee’s own illness. Labor Code Section 234 states: "[a]n employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233." Sections 233 and 234 are referred to as the Kin Care rules.
Pacific Telesis employees were paid for absences up to five consecutive days in any seven day period due to their own illness (after which they became eligible for short term disability) pursuant to a collective bargaining agreement. Once an employee returned to work, he or she became eligible for paid sick leave if the employee was again out ill. While there was no cap on the number of paid sick days per year, employees were subject to discipline under the attendance policy if they exceeded a certain number of absences during a 12-month period, including paid sick days that were not otherwise protected. Plaintiffs contended that the policy violated the Kin Care rules to the extent employees were not paid for time off to care for sick family members and that those absences counted toward their absence allotments. The Court of Appeal held that the policy was covered by the Kin Care rules.
The California Supreme Court reversed and held that summary judgment should be entered for Pacific Telesis because the policy was not covered by the Kin Care rules. Section 233 defines "sick leave" as "accrued increments of compensated leave." Because Pacific Telesis employees did not accrue determinate increments of paid sick leave, it would have been impossible to determine the amount of sick leave an employee would be entitled to use for kin care over a six month period. Thus, the Court reasoned that the Kin Care rules were not intended to cover sick leave policies providing indefinite amounts of leave.
California employers are advised to review their paid sick leave and attendance policies for compliance with the Kin Care rules. Even if certain "no fault" attendance policies are permissible under the Kin Care rules, no fault attendance policies remain subject to other laws, such as the Family Medical Leave Act and the Americans with Disabilities Act. Employers should also periodically review their other personnel policies to make sure they are current and compliant, including, for example, their FMLA policies and forms for compliance with the 2008 FMLA amendments and the California Family Rights Act.
Gibson, Dunn & Crutcher’s Labor and Employment Practice Group is available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
William D. Claster – Practice Co-Chair, Orange County (949-451-3804, [email protected])
Eugene Scalia – Practice Co-Chair, Washington, D.C. (202-955-8206, [email protected])
William J. Kilberg P.C. – Washington, D.C. (202-955-8573, [email protected])
Scott A. Kruse – Los Angeles (213-229-7970, [email protected])
Christopher J. Martin – Palo Alto (650-849-5305, [email protected])
Michele L. Maryott – Orange County (949-451-3945, [email protected])
Jason C. Schwartz – Washington, D.C. (202-955-8242, [email protected])
Elisabeth C. Watson – Los Angeles (213-229-7435, [email protected])
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