Posted: July 29, 2020 | News
Although the new school year is scheduled to start in August for many school-age children, Governor Newsom recently announced that schools within Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties, amongst others, must remain closed for in-classroom instruction due to the COVID-19 pandemic. As students will be required to learn from home, employers will likely see an increase in leave requests from employees who need time off to supervise and assist their children. When handling employee requests for leave due to a school or daycare closure, employers should be aware of the federal, state, and local paid leave laws that focus on supporting employees with children during a school or daycare closure.
Employees who work for companies with fewer than 500 employees may take up to 80 hours of emergency paid sick leave (EPSL) under the federal Families First Coronavirus Response Act (FFCRA) to care for a child while their school is closed due to COVID-19. Employees may also qualify for expanded family and medical leave (EFML), which provides employees with up to 12 weeks of job protected leave under the FFCRA. Employees who take EPSL and/or EFML must be paid two-thirds of their regular rate of pay for normally scheduled work hours. However, employees are not entitled to receive more than $200 per day or $12,000 for the entire 12-week period.
The Department of Labor (DOL) recently published a Questions and Answers page which clarifies that a school is closed for purposes of the FFCRA when the physical location is closed: "If the physical location where your child received instruction or care is now closed, the school or place of care is 'closed' for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as 'distance learning,' your child is still expected or required to complete assignments." Accordingly, employees with children engaged in "distance learning" are entitled to take EFML under the FFCRA even though their child's school is not completely "closed."
Under the Family and Medical Leave Act (FMLA) employees who have worked for their employer for at least 12 months and have worked at least 1,250 hours in the previous 12 months may take up to 12 weeks of unpaid, job-protected leave to care for a child with a serious health condition. FMLA leave applies to employers with 50 or more employees within a 75-mile radius. Leave taken under the FMLA can run concurrently with leave under the FFCRA, and thus will count against the employee's available FMLA leave bank if the need for leave qualifies under both FMLA and FFCRA.
California Paid Sick Leave
The California Labor Commissioner's Office stated in its published FAQs that employees may use available paid sick leave under California's paid sick leave law to be with their child during a school closure. In general terms, California's paid sick leave law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year.
California paid sick leave is separate from, and in addition to, leave taken under the FFCRA. Furthermore, employees cannot be required to take California paid sick leave before they take FFCRA leave.
California Leave Due to School Emergency
California Labor Code Section 230.8 entitles employees working for employers with 25 or more employees to take up to 40 hours off work each year (unpaid) to address their children's "child care provider or school emergency." A "child care provider or school emergency" includes a "closure or unexpected unavailability of the school or child care provider."
Local Leave Ordinances
Many cities and counties within California have passed their own paid sick leave ordinances which require paid leave for employees caring for their child due to a school or child care closure. The cities of Long Beach, Los Angeles, Sacramento, San Francisco, San Diego, and San Jose along with Los Angeles County have all passed ordinances requiring employers to provide leave for school closures. These leaves are in addition to the leaves provided under federal law. Most local leave ordinances addressing school closures are designed to cover employers with more than 500 employees since they are not covered under the FFCRA. However, an ordinance passed by the City of San Diego applies to all employers regardless of size, and allows employees to use paid sick leave to care for their child when their school or child care provider is closed due to a public health emergency.
Employers should closely review these important leave laws to ensure they correctly handle leave requests submitted by employees. This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you with addressing your employees' COVID-19-related leave requests.
This Article is one of a series of Articles Ferruzzo & Ferruzzo, LLP will be circulating to address questions from clients related to COVID-19. Ferruzzo & Ferruzzo, LLP has formed a task force to assist business owners with their needs related to COVID-19.
Jacob P. Menicucci, Esq. is an Associate and a member of Ferruzzo & Ferruzzo, LLP's Employment Practices Group. Jacob litigated numerous employment matters, including lawsuits involving wage and hour violations, discrimination, harassment, and whistleblower retaliation. Jacob counsels employers to ensure their policies and practices are in compliance with California's ever-changing employment laws.
Mr. Menicucci may be reached by phone at (949) 608-6900 or email email@example.com