Since 2000,
kin care law has given employees the right to use half of their accrued sick
leave to care for an ill child, parent, spouse, or domestic partner. Although
the law’s requirements, set out in Labor Code Section 233, seem
straightforward, real-life compliance can be another matter. We’ll tell you
about an important new
appeals court decision that examines the
kin care law for the first time and tackles some thorny issues. We’ll also
provide an overview of the general kin care leave rules employers need to
follow.
Unlimited Sick Days Provided
A collective bargaining agreement between the Pacific Telesis
Group (PacTel) of companies and the Communication Workers of America union
contained a “sickness absence” policy that provided employees up to five paid
sick days during any seven-day period. Interestingly, the policy did not cap
the number of paid sick days an employee could take, and employees did not earn
or accrue a specific number of paid sick days. Rather, once an employee took a
paid sick day and then returned to work, even for part of a day, eligibility
for sick leave was renewed. The sickness absence policy did not provide paid
sick days to care for an ill family member.
The agreement also contained an “attendance management” policy.
This policy stated that employees would receive a disciplinary “occurrence” for
many types of absences, including sick days (unless the absence was specifically
excluded, such as for workers’ comp injuries or time off covered by the federal
Family and Medical Leave Act (FMLA)). After a certain number of occurrences, an
employee would be counseled or disciplined.
Class Action Filed
The sickness absence policy came under attack. Two employees filed
a class action lawsuit contending that the policy violated
permit sick days to be used to care for family members. PacTel asked the court
to dismiss the case, arguing that the kin care law was intended to apply only
to traditional accrual-based sick leave policies for which the amount of leave
can be measured. In contrast, the company contended, leave didn’t accrue under
the sickness absence policy but was unlimited.
The lawsuit raised an additional issue: If the kin care law indeed
required that the sickness absence policy cover sick days used to care for
family members, would PacTel violate the law by counting kin care absences as
occurrences under the attendance management policy? The employees argued that
Labor Code Section 234, which was added to the kin care law in 2003, prohibits
employers from counting kin care leave against an employee under an absence control
policy.
Kin Care Law Applies to Unlimited Leave Plan
A
appeals court has now handed down a ruling that provides mixed news for
employers.1
First, the appeals court ruled that the kin care statute applied
to PacTel’s sickness absence policy. The court explained that Labor Code
Section 233 defines sick leave as “accrued increments of compensated leave.”
However, the meaning of “accrued” does not require an accumulation of sick days
over time. Thus, the kin care law allowing employees to use up to half of their
sick leave to care for an ill child, parent, spouse, or domestic partner was
intended to apply even to unusually generous policies like PacTel’s that permit
unlimited sick leave.
Second, the court discussed whether PacTel could count kin care
absences as occurrences under the company’s attendance management policy, in
light of Section 234’s prohibition against counting kin care leave against an
employee under an absence control policy. PacTel argued that it would be
anomalous to be required to give employees half of their unlimited sick leave
for kin care purposes but be unable to count any of those absences for
disciplinary purposes.
The court, however, concluded that Section 234 “does not prohibit
an employer’s regulation of ‘kin care’ leave taken by employees…provided that employers
regulate sick leave and ‘kin care’ leave in the same way.” In sum, Section 234
means only that absence control policies cannot impose greater consequences on
the use of sick leave for kin care than on the use of sick leave for an
employee’s personal needs.
Case Impact on Employers
Because of this ruling, any employers that offer unlimited sick
leave, as PacTel did, must allow employees to use up to half of that time for
kin care purposes. Unless you already have a traditional sick leave plan that
provides a certain number of days per year (so that kin care time is easily
measured), you could be on the hook for a lot of kin care time, so it may be
wise to consider changing/updating your policy.
Also, until this case, many employers assumed that they couldn’t
under any circumstance count kin care absences for disciplinary purposes under
an absence control or no-fault program. The court made it clear, though, that
the law does not preclude you from counting kin care absences under an absence
control policy as long as your policy treats regular sick leave absences in the
same way. Keep in mind, though, that you must continue to exclude certain other
legally protected absences—such as FMLA and pregnancy disability— from the
reach of no-fault policies.
3 Compliance Basics
Do you comply with the kin care leave requirements? Here’s a
rundown on the basic rules:
• Employers covered. The law applies to all private, state, and municipal employers
regardless of how many employees you have. Although the law doesn’t require you
to offer sick leave, if you do provide paid time off for illness, you must
comply with the new requirements.
• Permitted use of sick leave. The kin care law requires your sick leave policy to cover absences
when a worker’s child, parent, spouse, or domestic partner is ill.
• Amount of leave. Your policy must permit workers to use at least the amount of sick
leave they would accrue and have available during a six-month period. For
example, employees who accrue 10 days per year could use up to five days to
care for an ill family member. You do not have to grant leave if the amount of
sick leave the person wants to take has not yet accrued, has already been used
up, or is not available to be taken yet.
1 McCarther v. Pacific Telesis Group,
A115223, 2008