Employer Obligations to Provide Leave Related to School Closures During Coronavirus Pandemic

March 13, 2020
Update.  On March 18, 2020, the Families First Coronavirus Response Act (“Response Act”) was signed into law.  The Response Act requires employers with fewer than 500 employees to provide leave to parents who need to take time off due to school closures.  Our recent memorandum on the employment-related aspects of the Response Act discusses this requirement in detail, and is located here.

 



On March 11, 2020, COVID-19 (“Coronavirus”) was deemed a pandemic by the World Health Organization (“WHO”), and schools throughout the country are opting to temporarily close their doors, or move to digital learning.  In light of these changes, employers should be aware of laws that may require them to provide leave (paid or unpaid) to employees who need to take time off to care for their children. 
 
Although as of this writing there is no federal law mandating that employers provide leave to employees who stay home to care for their children, Congress is currently considering the “Families First Coronavirus Response Act,” which among other things would require that employees be provided with 14 days of paid sick leave and up to three months of paid family and medical leave.  (At present, as Department of Labor (“DOL”) guidance recently confirmed, “employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care.”)   
 
The Centers for Disease Control and Prevention (“CDC”) has issued guidance recommending that employers voluntarily “prepare to institute flexible workplace and leave policies for these employees.” 
 
Employers should be aware that state and local laws do impose certain obligations on employers with respect to employees who have to care for children whose schools have been closed, including:
  • New York
    • New York State law does not provide for leave in this circumstance; however, New York City’s Earned Safe and Sick Time Act (“Paid Safe and Sick Leave Law”) mandates that employers provide paid or unpaid leave to eligible employees to “care for a child whose school or child care provider closed due to a public health emergency.”  Employers who have five or more employees are required to provide up to 40 hours of paid sick leave at the employees’ regular hourly rate, but no less than the minimum wage.  Employers with fewer than five employees must provide eligible employees with up to 40 hours of unpaid leave.
       
  • California
    • California law provides that employers with 25 or more employees working at the same location must provide up to 40 hours of paid or unpaid leave to parents, guardians, foster parents or persons standing in loco parentis to care for their children during a “school emergency.”  A school emergency includes when a child cannot remain in school due to “[a] natural disaster, including but not limited to, fire, earthquake or flood.”  Cal. Lab. Code § 230.8.  Unless otherwise provided by a collective bargaining agreement entered into before January 1, 1995, employees “shall utilize vacation, personal leave, or compensatory time for the purposes of the planned absence” and may “utilize time off without pay for this purpose, to the extent made available by his or her employer.” Id.  Employees must provide employers with notice.
Employers who are not legally obligated to provide leave due to school closures may nevertheless consider offering solutions to address potential absenteeism from employees with school-age children, such as teleworking or staggering employees’ shifts.  Employers may find it helpful to consult CDC guidance, which states:
  • Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
  • Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
  • Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
The Coronavirus situation is fluid, and laws may be changing in response.  Our recent memorandum discussing the Department of Labor’s guidance may be found here and our post discussing guidance for employers may be found here.

DOL