Labor Code section 233: sick leave to attend to family

STATE OF CALIFORNIA GRAY DAVIS, Governor

DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
Santa Rosa Legal Section
50 D Street, Suite 360
Santa Rosa, CA 95404
(707) 576-6783

H. THOMAS CADELL, Of Counsel

                                 June 24, 2002

LaVerne David
Strategic Business Partners, Inc.
15068 Rosecrans Ave., #318
La Mirada, CA 90638

      Re:        Labor Code Section 233

Dear Ms. David:

 Anne Stevason, Acting Chief Counsel of the Division, has asked

me to respond on behalf of the Division of Labor Standards
Enforcement to your letter of March 4, 2002 regarding the above­
referenced topic.

      1. Your first question asks whether the provisions of Labor
         Code § 233 apply to public employers such as municipal
         corporations.

             The provisions of Labor Code § 233(b)(2) defines "employer"
             for purposes of the section and clearly indicates that the
             legislation was designed to include the "state, political
             subdivisions of the state, and municipalities."      In the
             view of the DLSE, this broadly worded coverage includes all
             public entities in California.


      2. Next you ask whether the section applies if there is an
         existing labor agreement in place that discusses sick
         leave.

             There is no exception for collective bargaining situations
             in the statute and, inasmuch as the provisions of the
             section are clearly intended to constitute a state mandated
             minimum standard, the enforcement would not be pre-empted
             by the National Labor Relations Act.       (See Livadas v.
             Bradshaw 521 U.S. 107, 114 S.Ct. 2068 (1994))

      3. You ask how would Labor Code § 233 apply if:

      a. The company is a public corporation and employees are
         covered by a collective bargaining agreement.

      b.   Employees accumulate 8 hours vacation (we assume for
           purposes of this question that you mean "sick leave"
           not vacation, since vacation is accrued under the
           provisions of Labor Code § 227.3 and, under California
           law, is vested and cannot be forfeited) per month.

      c. During the year 2001, an employee does not use any sick
         leave; therefore, he/she has accumulated 12 days sick
         time.

      d.   In January of 2002, the employee asks for 6 days of Kin
           Care.

 You then ask whether the employer should take into

consideration the accumulated sick time from 2001, which would be
available for the employee's own illness, and grant the 6 days of
use as Kin Care. The answer is yes.

  The Legislative Analyst's report attached to AB 109 provided:

  "This bill would require an employer who provides sick
  leave, as defined, for employees to permit an employee to
  use in any calendar year accrued sick leave, in an amount
  not less than the amount earned during 6 months'
  employment, to attend to the illness of a child, parent,
  or spouse of the employee."

  In the opinion of the Labor Commissioner, the legislative in­

tent of Section 233 was to insure that in the event an employer had
a sick leave policy in effect, time for caring for family members
was provided in the same manner as sick leave time which arises as
a result of the employee himself being ill, with the exception, of
course, of the limit on the amount of accrual which may be taken in
any one year.

 We hope this adequately addresses the questions you raised in

your letter. Please excuse the delay in responding, we hope that
such delay has not greatly inconvenienced you.

Yours truly,

H. THOMAS CADELL, JR.
Attorney for the Labor Commissioner

c.c. Arthur Lujan, State Labor Commissioner
Tom Grogan, Chief Deputy Labor Commissioner
Anne Stevason, Acting Chief Counsel
Assistant Labor Commissioners
Regional Managers