California Supreme Court Says Kin Care Rule Does Not Apply to Unlimited Leave

John GarnerDMEC News

When asked to resolve whether California’s Labor Code Section 233 applied to paid sick leave policies that provide for an uncapped number of compensated days off, the California Supreme Court reversed the previous findings of the Court of Appeals, and concluded that Section 233, which permits an employee to use up to half of his or her accrued paid sick leave to care for ill relatives, could not be applied to a policy without any measurable limits.

The case is Kimberly McCarther et al., Plaintiffs, vs. Pacific Telesis Group et al., Defendants

Employed by affiliated entities of the Pacific Telesis Group, Kimberly McCarther and Juan Huerta belonged to the Communication Workers of America labor union, of which their employer was a signatory of the collective bargaining agreement (the CBA).  One requirement within Section 5.01F of the CBA provided that employees be compensated for any day in which they missed work due to their own illness or injury for up to five consecutive days of absence in any seven-day period.  Once an employee returned to work following any period of absence, section 5.01F could then again be triggered if the employee was absent for his or her own illness or injury.

McCarther was absent for seven consecutive days in 2004 to care for her ill children.  She was not paid for the absence, and did not request to be paid for the absence under the sickness absence or personal day off policies.  McCarther instead requested that her leave be approved as Family Medical Leave Act protected leave, which her employer denied.  She then filed a grievance, which was also denied.  McCarther was never disciplined in connection with any absence to care for an ill family member, and although she received one or two written warnings concerning her attendance, she was not suspended or terminated for any attendance-related reason.

Plaintiff Huerta was absent for five consecutive days to care for his ill mother.  He requested that one day of his absence be paid pursuant to the personal day off policy, which was granted.  He did not request that any other days of his absence be paid pursuant to the sickness absence provision of the CBA, and he was not paid for any other days of absence.  Huerta’s absence was considered excluded from the attendance management policy, and Huerta was not disciplined for his absence.  Huerta was never disciplined for any attendance-related reason during his employment.

Kimberly McCarther and Juan Huerta brought action against their employers.  In a second amended complaint, McCarther and Huerta alleged three causes of action concerning their employers’ failure to provide paid leave to care for employees’ relatives in accordance with Labor Code section 233.

Relying on the plain meaning of section 233, and the legislative history of section 233, the trial court concluded that the CBA sickness absence policy did not constitute sick leave pursuant to the section, and it granted the Pacific Telesis Groups’ motion for summary judgment.

On appeal, McCarther and Huerta provided the court with reasoning that an employee’s kin care leave entitlement could be based on the amount of sick leave that the employee actually utilized in one year.  Although they acknowledged the flaw in this reasoning, the Court of Appeals reversed the trial court’s grant of summary judgment for the Pacific Telesis Group et al.  The Court of Appeals explained that the reasoning for their reversal was that “one cannot in advance calculate with mathematical certainty the amount of sick leave that employees would actually use in a six month period because of the uncertainty of their illness or injury.  However, section 233 does not require any such certainty.”  Pacific Telesis Group then filed, and was granted petition for further review at the state Supreme Court level.

While the Court of Appeals granted judgment in favor of McCarther and Huerta, and agreed that the CBA sickness absence policy constituted “care for ill relatives” as part of “sick leave” within the meaning of section 233, the Supreme Court did not.

Since the Court of Appeals avoided dealing with the problematic issues within the code, it was up to the Supreme Court to make a final judgment on this case and put it to rest once and for all.  Although the plain language of the statute was found to be clear, an examination of section 233’s legislative history confirmed to the Supreme Court that the statute was not intended to apply to all types of sick leave policies. Instead, the statute was interpreted by this court to apply only to those policies in which employers provide “accrued increments of compensated leave.” 

When examining the McCarther’s and Huerta’s policies the Supreme Court found no bank of paid sick days that employees could incrementally accrue over a period of time.  There was no cap on the number of days employees could be absent from work, nor was there any particular number of days that employees could vest, earn, or accrue under the CBA sickness absence policy.  The court also determined that their employer had never maintained a policy or practice of paying employees for absences to care for ill family members, nor had the union ever asserted that section 5.01F of the CBA covered absences for the illness of an employee’s family member.

While the court concluded that section 233 Legislature intended to limit the types of sick leave policies to which the statute was to be applied, it also found that it was intended, as was suggested by McCarther and Huerta, to protect employees.  When interpreting the statute to exclude policies like the defendants’, the court did not find such exclusion to run afoul of the legislative intent.  The court explained that “employers are not required to provide sick leave.  Many employers elect to do so, and many do so in the form of an accrual-based system.  Employers may choose to refuse employees the right to use uncapped sick leave to care for relatives, although employers are certainly not precluded from doing so.  Indeed, defendants offer compensated personal days off, which may be taken to care for ill relatives — a policy of which plaintiff Huerta availed himself to receive one day of compensated leave to care for his ill mother.  There are employers, like defendants, that elect to provide an uncapped compensated sick leave policy.  We conclude that section 233 does not apply to those types of policies.”

Finding the only limitation on the amount of compensated time off an ill employee could  claim under the CBAs’ sickness absence policy to be the  attendance management policy, which provided for a progression of discipline for employees who were absent eight days or more in a year, the court could find no further attendance limitation within the CBA.  Without further limitation, the court determined that an ill employee could claim an unlimited number of compensated sick days off, provided that they returned to work for at least part of a day every week.  Without the needed provision within the CBA to allow for the measurement of compensated accrued sick days, the Supreme Court found that Labor Code section 233 could not be applied to sickness absence policies like the one brought before it.

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