Courts' First Kin Care Ruling

California law provides for "Kin Care," which essentially authorizes employees to use half of paid sick leave to care for covered family members' illnesses. Labor Code section 233, the statute that created Kin Care, prohibits employers from discharging, disciplining, or taking other action against employees for taking Kin Care. Section 234 invalidates absence control policies that count Kin Care against attendance. But Section 233 also says that employers can impose the same conditions on Kin Care that it applies to its sick leave policies applicable to employees' own illnesses.

The Court of Appeal decided in McCarther v. Pacific Telesis that employers may count Kin Care leave against attendance to the same extent as sick leave for an employee's own illness. The Court relied on the language in section 233 that permits employers to treat Kin Care the same as sick leave. The Court said that section 234 prohibits employers only from placing additional burdens on the use of Kin Care. This was a key ruling, since Pacific Telesis permits unlimited sick leave, but counts sick leave against employees' attendance. If section 234 prohibited the attendance policy, employees there essentially could take unlimited sick leave, call it Kin Care, and never come back to work.

Stay tuned for a full length article in the Daily Journal next week. In the meantime, here's the opinion.

DGV