Employers should take note of two recent updates in California leave laws, which include both a limitation and expansion of existing leave laws. This week, the California Supreme Court limited benefits offered under the kin care provision of California Labor Code section 233 in McCarther v. Pac. Telesis Group (S164692, 2/18/10) holding that kin care benefits do not apply to uncapped sick leave plans. A separate update in leave laws involves the Civil Air Patrol Employment Protection Act, which went into effect in January of this year and expanded leave rights under the statute to qualifying civilian volunteers in the California Wing of the Civil Air Patrol. Both decisions are critical as employers work to update their existing policies and manage employee leaves.

California Supreme Court Limits Application of ‘Kin Care’ Provisions
On February 18, 2010, the California Supreme Court entered a decision in McCarther, holding that California’s kin care laws do not apply to uncapped sick leave policies. California’s kin care regulations, as codified in Labor Code section 233, require employers that provide sick leave to permit use of “sick leave” to include care for a sick child, parent, spouse or domestic partner. Labor Code section 233 states, in relevant part, as follows: 

    (a) 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. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner. …

Section 233(b) further defines “sick leave” to mean “accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment.”

At issue in McCarther was Pacific Telesis’s “sickness absence” policy that provided an unlimited amount of sick leave, pursuant to a collective bargaining agreement. That policy, as articulated in the collective bargaining agreement, provided a maximum of five (5) days in a 7-day period, with the entitlement renewing each time the employee returned to work. Other than this restriction, the policy had no cap on the amount of sick days an employee could use.

The lawsuit was initiated by two employees of Pacific Telesis who brought suit in 2005; one because the Company would not pay him for days that he spent caring for his ill mother and the other because the Company did not pay her for seven consecutive days that she missed to care for her children. Pacific Telesis argued that the provisions of section 233 did not apply to its “sickness absence” policy, because the Company would not be able to regulate kin care leave.

Pacific Telesis won summary judgment which was overturned by the Court of Appeal. The Court of Appeal found the provisions of the “sickness absence” policy were subject to section 233.

The California Supreme Court disagreed and reversed the ruling by the Court of Appeal. The Court reinstated the grant of summary judgment and found that the kin care provisions of Labor Code section 233 only apply to employers who provide “accrued increments of compensated leave” and were not meant to apply to all types of sick leave policies. Notably, the Court recognized that where the sick leave policy was indefinite, kin care cannot be applied as it would be “impossible to determine the amount of compensated time off for illness to which an employee might be entitled in a six-month period.”

Civil Air Patrol Employment Protection Act Expands Leave Rights To Qualifying Civilian Volunteers In The California Wing Of The Civil Air Patrol
Employees who volunteer as part of the California Wing of the civilian auxiliary of the United States Air Force (known as “Civil Air Patrol”) may now be entitled to an unpaid leave to respond to certain emergency situations under the Civil Air Patrol Employment Protection Act (the “Act”). Authored by Assembly Member Carter, and codified at Labor Code 1500, et seq., this Act applies to employers with 15 or more employees, and requires an employer to provide not less than 10 days per calendar year of unpaid Civil Air Patrol leave to an eligible employee responding to an emergency operational mission of the Civil Air Patrol.

To be eligible for such leave, an employee must have been employed for at least a 90-day period immediately preceding the commencement of leave. An employee is further required to give as much notice as possible as to the intended beginning and end of the leave, and can be required to submit certification from the Civil Air Patrol to verify the eligibility of the employee for the leave. If the requisite certification is requested by the employer but not provided, the leave may be denied.

Although a leave extension may be granted by the government agency authorizing the emergency mission (if also approved by the employer), a leave for a single emergency operational mission may not exceed three (3) days. This leave further is restricted to an emergency operational mission of the Civil Air Patrol, which can be authorized by the United States Air Force, the California Emergency Management Agency, or other subdivision of the State of California which has the authority to authorize an emergency operational mission of the California Wing of the Civil Air Patrol. In contrast, this leave is not required to be granted for employees who are required to respond to emergency operational missions as a first responder or disaster service worker for a local, state or federal agency. Civil Air Patrol leave is also generally unpaid, and an employer may not require an employee to use any accrued benefit such as vacation, paid time off, or any other form of leave that may be available.

Like other protected leaves, an employee must be returned to the same or similar position, status, benefits and terms and conditions of employment held when the leave began unless the employer would not have restored the employee to this position for reasons unrelated to the leave. Employers also may not discriminate against or terminate employees who are members of the Civil Air Patrol because of such membership. Employers also cannot interfere with, restrain or deny an employee’s attempt to exercise his right to membership or leave. Finally, this Act also does not affect the obligations of compliance with any collective bargaining agreement or benefit plan providing for more expansive leave rights, nor can the protections afforded under this Act be diminished by any collective bargaining agreement or employee benefit plan entered into after the first of this year.

How Can Dorsey Help?
As a result of these changes in leave laws, it is critical that human resources personnel, leave administrators and management level employees are aware of, and trained on, the requirements and employer obligations under these and other leave laws. This further may require amendment to existing employee handbooks or supplementing leave policies to ensure all covered employees are aware of their rights and obligations related to this leave. Dorsey & Whitney LLP’s Labor and Employment team can assist with both the applicable training and drafting of updates to policies that might apply to these and other changes in leave laws.