Hunton Employment & Labor Perspectives

As the national response to COVID-19 intensifies, states and localities across the country have announced school closures.  Employers should review their state and local laws to determine whether such closings may trigger an employee’s right to take job-protected, or paid leave.

State and Local Leave Allowances for School Closings

Many states have laws that require employers to offer employees paid sick leave. In each state, there are different qualifying reasons that entitle employees to take this leave.  What employers may not realize, is that some states require that employees be allowed to use paid sick leave during certain school closing scenarios.  In at least seven states, school closings caused by a public health emergency are a qualifying reason to take paid sick leave.  Those states are Arizona, Michigan, New Jersey, Oregon, Rhode Island, Vermont and Washington.

Several localities also have mandatory paid sick leave allowances that include emergency school closings.  Those localities include San Diego, California; Chicago, Illinois; Cook County, Illinois; Montgomery County, Maryland; Minneapolis and Saint Paul, Minnesota; New York City; Westchester County, New York; and Pittsburgh, Pennsylvania.

In addition, the California Department of Industrial Relations has issued guidance suggesting that employees may (but cannot be required to) use paid sick leave to care for their children during a school closure due to COVID-19.  Specifically, California law requires that employees be provided sick leave for the following purpose: “Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member.”  The DIR’s recent guidance provides that “a parent may choose to use any available paid sick leave to be with their child as preventative care.”

Most of these statutes do not expand the total entitlement of leave for school closings.  Instead, they merely allow employees to use the paid sick leave that they have accrued for the purpose of caring for children who are out of school because of emergency closings.  Employers should review the statutes in their states and localities and consult employment counsel to determine how the laws may apply in their area.

In addition to paid sick leave, California also has a school emergency law that covers school closings for health emergencies.  Under that law, employees are entitled to take up to 40 hours of unpaid leave for school emergencies.  If employees have paid leave available under an employer policy, such as vacation or PTO, the employer may require the employees to use such leave for the school emergency.  If the employees do not otherwise have leave available from an employer plan, they may take the 40 hours as unpaid, job-protected leave.

Potential Federal Legislation

Employers should also monitor developments in Congress.  On Friday, the House of Representative passed a bill that would provide for paid leave for employees of employers with fewer than 500 employees to care for children out of school because of emergency closures.  Under the paid sick leave provisions of the law, full-time employees would be entitled to take up to 80 hours of paid leave because of school closings.  Part-time employees would be allowed to take an equivalent amount of time as they normally work during a two-week period.  In addition, the law includes expansion of the Family Medical Leave Act that covers school closures, and allows an additional 12 weeks of leave.  The first two weeks of such leave would be unpaid, and after that leave would be paid at two-thirds an employee’s regular rate.

As passed in the House, the law only applies to employers with fewer than 500 employees.  Affected employers would be allowed to apply for tax credits to cover the cost of the additional leave allowances.  The Senate is expected to take up the legislation this week.