California Supreme Court Update:[br]Labor Code Section 233 Does Not Apply To Paid Sick Leave Policies That Provide For An Uncapped Number Of Compensated Days Off

In McCarther v. Pacific Telesis Group, (— Cal.Rptr.3d —-, Cal., February 18, 2010), the California Supreme Court addressed the issue of “whether Labor Code section 233, which permits an employee to use accrued paid sick leave to care for ill relatives, applies to paid sick leave policies that provide for an uncapped number of compensated days off.” The Supreme Court concluded it does not.


Kimberly McCarther and Juan Huerta are workers who are members of the Communication Workers of America (“Union”) and are covered by a collective bargaining agreement (“CBA”), which has a provision “that requires employees be compensated for any day in which they miss due to their own illness or injury for up to five consecutive days of absence in any seven-day period.” This provision, section 5.01F of the CBA, further provides that once the employee returns to work after any absence, this provision may be triggered again for the employee’s own illness or injury. CBA section 5.01F does not provide for a bank of sick days that an employee accrues over a period of time but there is also no cap on the number of days that the employee may be absent. If an employee is absent an entire week due to illness, and he or she returns to work the following Monday but only works part of the day, the employee can leave work and be absent for five more continuous days with pay.

McCarther’s and Huerta’s employers (collectively, “Employers”) “never maintained a policy or practice of paying employees under section 5.01F of the CBA for absences to care for ill family members” and the Union never asserted that it covers such absences. The CBA provides for a schedule of progressive discipline when an employee is not meeting attendance standards. “An employee is not meeting standards if he or she has eight or more absences in a 12-month period with no extenuating circumstances, or if an employee has more than four full days of absence and three or more ‘occurrences’ of absences in a 12-month period with no extenuating circumstances.” Absences due to work-related injury and those covered by the Family and Medical Leave Act of 1993 are exempt from the discipline policy. The CBA provides six personal days per year, which are not subject to attendance management policy. Absences due to employee illness however are potentially subject to discipline under the attendance policy.

McCarther was absent for seven consecutive days to care for her ill children and was not paid for these absences. McCarther’s employer denied her request that her absences be approved as Family and Medical Leave Act leave. Huerta was absent for five consecutive days to care for his ill mother. He requested one day of personal leave pay, but did not request that the other days be paid under section 5.01F. Neither employee was disciplined for their family-related absences.

McCarther and Huerta brought a lawsuit in which they alleged Employers failed to provide them with paid leave to care for their relatives in accordance with Labor Code section 233. Section 233 provides, in part, “[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, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.”

The trial court found Employers’ “sickness absence policy did not constitute sick leave pursuant to section 233” and granted judgment in favor of Employers. A Court of Appeal reversed that decision and held Employers’ policy did constitute sick leave within the meaning of section 233.


The California Supreme Court reversed the judgment of the Court of Appeal. The Supreme Court held section 233 does not cover the sickness absence policy at issue here.

Section 233 defines “sick leave” as “accrued increments of compensated leave.” Employers’ sickness policy “provides for an uncapped number of paid days off for illness so long as each instance of absence continues for no longer than five consecutive days.” The question before the Supreme Court was whether Employers’ sickness absence policy constitutes sick leave within the meaning of section 233.

The Court noted section 233 “does not apply to any and all forms of compensated time off for illness, but only to ‘sick leave’ as defined by the statute and only in the amount specified.” The Court found that “[t]he facts that section 233 defines sick leave as ‘accrued increments of compensated leave,’ and that the statute limits the amount of sick leave that can be used to care for an ill family member to ‘an amount not less than the sick leave that would be accrued during six months,’ indicates that the reach of the statute is limited to employers that provide a measurable, banked amount of sick leave.”

The requirement that employers provide sick leave at least in the amount that would be accrued during six months for care of family members “cannot sensibly be applied to the sickness policy at issue here, because it is impossible to determine the amount of compensated time off for illness to which an employee might be entitled to in a six-month period.” Employers’ policy does not provide a bank of sick leave to which an employee is entitled to in a six or 12 month period but instead provides that an employee who is ill will be compensated for up to five consecutive days for each illness. Employers’ only limitation is that the employee may be disciplined if he or she is absent eight or more days per year absent extenuating circumstances. The Court concluded, “It is impossible to determine, therefore, the amount of compensated time for sick leave to which an employee might be entitled within six months and, thus, impossible to determine the amount of time an employee could use for kin care under section 233.” The employees’ time may not be banked and it cannot be calculated in a six-month period. Their current rate of entitlement may only be measured in seven-day periods. “Accordingly, section 233 does not apply to sickness absence policies like [employers’].”

The Court found that its conclusion is supported by the Legislature’s addition of Labor Code section 234, “which prohibits employers from using an absence control policy to ‘count[] sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension.'” Pursuant to Employers’ policy, the only limit on time off for illness is the progressive discipline if an employee is absent eight or more days per year. “Without this limitation, an ill employee could claim an unlimited number of compensated sick days, provided the employee returned to work for at least part of a day every week.” If section 233 required Employers to permit their employee to use a portion of their compensated time for kin care, then section 234 would prohibit Employers “from using its attendance management policy to limit the amount of kin care that an employee could claim.”

Section 233 requires “that the amount of kin care leave be ascertainable” and limits the type of sick leave to which it applies to “accrued increments of compensated leave” that an employee has already accrued and has available. Accrued leave means leave that has been accumulated. Pursuant to section 5.01F, McCarther and Huerta do not have a bank of sick leave that they accrue or accumulate over a period of time.

The Court found that the legislative history of section 233 “confirms that the statute was not intended to broadly apply to all types of sick leave.” The Supreme Court held section 233 does not apply to employers who “elect to provide an uncapped compensated sick leave policy.”


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Bruce A. Scheidt, Laura Izon Powell or David W. Tyra | 916.321.4500