California Supreme Court Narrows Application of Kin-Care

January 13, 2011 by Beeson Tayer & Bodine

In McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, the California Supreme Court limited the scope of California’s Kin- Care law. California Labor Code 233, the “Kin-Care” statute, does not compel employers to provide paid sick leave; but for those that do, the law gives employees the right to use up to half their annual sick leave to cover time off to care for the illness of a family member.

In McCarther, the Court addressed the question of how the Kin-Care law applies to an employer sick leave policy that does not specify a certain number of paid sick days accrued each year. In McCarther, the sick leave policy allowed employees to use unlimited sick leave for absences of up to five consecutive days, but the employer refused to apply the policy to time taken off to care for a sick family member.

The Supreme Court agreed with the employer, and ruled the Kin-Care statute only applies to sick leave policies that provide for employees to accrue a specific amount of sick leave, and does not apply to policies that have unlimited sick leave.

Another issue raised in this appeal to the Supreme Court was whether an employer with a no-fault attendance policy can discipline an employee for Kin-Care absences, including giving employee attendance points. The Court did not reach this issue, but Labor Code 234 provides that an “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.” We recommend that where the employer’s sickleave policy is subject to the Kin-Care law unions continue to contest attendance points given to employees who use Kin-Care to care for family members.

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