Law Allowing Employees To Use Sick Time To Care For Family Members Applies To Policy In Which Sick Time Is Not Accrued In Specific Periodic Increments

In McCarther v. Pacific Telesis Group, (— Cal.Rptr.3d —, 2008 WL 2152655, Cal.App. 1 Dist., May 23, 2008), a California Court of Appeal considered how Labor Code Section 233, which requires that employers allow employees to use paid sick leave to care for family members, applied if the employer provided paid time off when employees were sick, but not in increments accrued over specific periods of time. The court ruled that the distinction in how sick time was made available was irrelevant and did not relieve the employer of the legal obligation to allow employees to use sick time to care for family members.


Kimberly McCarther (“McCarther”) and Juan Huerta (“Huerta”) were employed by Pacific Telesis Group. Each missed time at work in 2004, McCarther to care for two ill children and Huerta to care for his ill mother. Both sought to receive sick pay for absences and both were denied.

McCarther and Huerta brought a lawsuit claiming that their employer had violated the requirement of Section 233 that they be allowed to use paid sick time to care for ailing relatives. The trial court ruled in favor of the employer stating that because the employees were allowed to be paid for sick time off, but did not accrue it over specific time periods, Section 233 did not apply. The employees appealed.


Section 233 requires employers to allow an employee to use “accrued and available sick leave entitlement” to care for ill family members. That language plainly applied to McCarther and Huerta, the court ruled.

The dispute hinged on the meaning of the word “accrued,” the court said, and whether that word meant that Section 233 applied only when employees earned amounts of sick time by working at their jobs for specific periods of time, unlike the plaintiffs in this case. Analyzing prior case law and various dictionary definitions, the court found that “accrued” applies to a thing that is “earned but not yet” due or paid. Further, the court added, it consistently applies to something to which some right or claim is made. Here, the employees had earned and had a right to their paid sick leave by virtue of their employment and the terms of their collective bargaining agreement with their employer, the court found, and the sick time therefore, under the plain meaning of the language, had accrued.

Furthermore, the clear intent of the Legislature in enacting Section 233 was to allow employees to care for ill family members without suffering financial harm and no evidence suggested that it intended to exempt from that benefit employees who received their sick leave in ways other than in specific periodic increments. The trial court’s judgment was reversed and the case remanded for further proceedings consistent with the court’s opinion.