Don’t count on vague leave language to limit care for employees’ family members

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in FMLA Guidelines,Human Resources

The California Legislature concluded back in 1999 that employees should be able to use any sick leave their employers provide to care for sick family members—whether or not the employers’ policies allow them to do so.

The law states “any employer who provides 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 law may not be a model of clarity, but that doesn’t mean employers can skirt the entitlement by not using the term “sick leave” or otherwise creating policies that are hard to pin down.

Recent case: Kimberly McCarther worked for the Pacific Telesis Group and was absent for seven consecutive workdays to care for her two children. She wasn’t paid for the time off, although under her employer’s collective bargaining agreement she probably would have been paid had she been ill.

McCarther sued, alleging that by refusing to pay her, the company violated the legal provisions concerning time off to care for family members.

The Court of Appeal agreed. The court said if the collective bargaining agreement entitled McCarther to be paid when she was out sick, she should have been paid for her time off to care for her ill children (subject to the six-month limitation). (McCarther v. Pacific Telesis Group, No. A115223, Court of Appeal of California, 2008)

Final note:
Don’t expect clever wording to save you from providing paid leave to workers who care for family members. If you have any questions about whether your current leave policies are legal, consult your attorney.

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