You don’t have to pay for family leave unless your employees accrue sick leave

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in FMLA Guidelines,Human Resources

The California Supreme Court has ruled that employers that don’t have a formal sick-leave accrual policy don’t have to pay employees for leave they take to care for a family member. So-called “kin-care” benefits apply only if employees earn sick leave over the course of their employment.

Recent case:
Kimberley McCarther sued Pacific Telesis Group on behalf of all other similarly situated employees after the company refused to pay her when she took seven days off in 2004 to care for her two sick children. McCarther argued that Section 233 of the California Labor Code gave her the right to paid leave.

Section 233 states, “Any employer who provided 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.”

The section goes on to define sick leave as “accrued increments of compensated leave.”

Pacific Telesis argued that it didn’t allow sick leave to accrue. Instead, it allowed employees to take up to five paid days per week if they became ill, with just one condition: They had to return for at least part of one day in order to be eligible for another five-day period.

The benefit was theoretically unlimited, except Pacific Telesis could discipline employees who had eight or more absences in a 12-month period without extenuating circumstances.

The company argued that under its plan, there was no accrual of a sick leave benefit, and therefore no sick leave available from which employees could draw to care for relatives.

The Supreme Court of California agreed. It said the Legislature had chosen to limit the kin-care entitlement only to employees of organizations that allow employees to accrue a set number of sick days.

The court also pointed out that state law doesn’t require employers to offer sick leave, either. But if they do, and allow the time to accrue, then and only then are they also required to allow time off for kin care. (McCarther, et al., v. Pacific Telesis Group, No. S164692, Supreme Court of California, 2010)

Final note:
Don’t forget that some local governments do require employers to provide sick leave for employees. Notable among these are the city and county of San Francisco. Note that this decision does not affect covered employers’ obligation to provide unpaid leave under the FMLA.

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