PTG employees are allowed an uncapped number of compensated days off for their own illnesses. However, PTG does not maintain a policy to pay employees for absences to care for ill family members. PTG’s attendance policy has a progressive discipline scheme, but absences are excluded from discipline if they constitute protected leave under workers compensation or FMLA. Plaintiffs filed a complaint alleging PTG failed to provide paid leave under Labor Code § 233, which allows an employee to use accrued sick leave to attend to an ill family member. PTG filed a motion for summary judgment and Plaintiffs filed a motion for summary adjudication seeking a determination whether PTG’s sickness absence policy constituted “sick leave” within the meaning of § 233. The trial court granted PTG’s motion for summary judgment on the basis that PTG’s sickness absence policy did not constitute “sick leave” pursuant to § 233. Plaintiffs appealed and the appellate court reversed, holding that PTG’s sickness absence policy did constitute “sick leave” within the meaning of § 233.
Reversed. Labor Code § 233 applies to “accrued and available sick leave.” It does not apply to paid sick leave policies that provide for an uncapped number of days off. Where sick leave is not accrued, it is impossible to determine how much sick leave an employee is entitled to and how much could be used to attend to an ill family member. Employees had other types of leave available to use to care for family members.