California’s “kin care” statute—Labor Code Section 233—permits an employee to use a portion of his or her accrued paid sick leave to care for ill relatives. In McCarther v. Pacific Telesis Group, the California Supreme Court recently ruled that it does not apply to paid sick leave policies where “employees do not earn, vest or accrue any particular number of paid sick days in a year … and do not have a ‘bank’ of paid sick days that they accrue in increments over a period of time.”

In other words, an employer with a policy that allows an uncapped number of compensated sick days does not have to pay employees who take sick leave to care for their family members.

The Sick Leave Policy at Issue

Kimberly McCarther and Juan Huerta worked for SBC Services, Inc. and Pacific Bell Telephone Company, respectively, both of which were parties to a collective bargaining agreement that sets out a policy for unlimited paid sick leave. Under the policy, an employee is to be paid for any day he or she misses work due to his or her own illness or injury for up to five consecutive days of absence in any seven-day period.

Once the employee returns to work following any period of absence, the five consecutive days in a seven-day period restart. In other words, there is “no bank of paid sick days that employees incrementally accrue over a period of time [and] there is no cap on the number of days.” Further, the employers never maintained a policy or practice of paying employees for absences to care for ill family members.

Labor Code Section 233

McCarther and Huerto claimed that Section 233 entitled them to paid sick leave for care of ill family members. Section 233 provides that “[a]ny 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 … to attend an illness of a child, parent, spouse, or domestic partner of the employee.” 

“Sick leave” is defined in the statute as “accrued increments of compensated leave.” Based on this definition, the Court concluded that the kin care section “does not apply to any and all forms of compensated time off for illness, but only to ‘sick leave’ as defined by the [section]; … it is limited to employers that provide a measurable, banked amount of sick leave.” The Court effectively extinguished the employees’ claims in finding that “sick leave” under the kin care statute is strictly limited to “accrued increments of compensated leave.” The Court noted that applying the kin care statute to an uncapped sick leave policy “would be contrary to the plain intent of Section 233, which requires only those employers who provide sick leave in accrued increments to permit employees to use half of that … for kin care.”


The decision is a good one for employers with uncapped sick leave policies. The Supreme Court took a straightforward and reasoned approach in rejecting the employees’ claim that Section 233 applied to the employers’ sick leave policy. Focusing on the plain language of the statute and its narrow definitions, the Court refused the employees’ invitation to expand the statute’s scope.

With any luck, the Court will apply a similar approach to the other wage hour cases before it. For today, given the Court’s clear reasoning, employers can safely assume that so long as a sick leave policy does not permit employees to earn and accrue sick leave, the kin care statute will not apply.