Before the COVID-19 crisis, there were limited paid leave entitlements in California for employees requiring time off to deal with childcare and school closures. California Labor Code 230.8 required that employers of 25 or more employees working at the same location were required to provide employees with up to 40 hours of unpaid leave within a calendar year to handle child-related activities, including to address a childcare provider or school emergency. As schools and childcare facilities began closing due to COVID-19, the California Labor Commissioner released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8. Also, pre-COVID-19, the City of San Diego was unique in California in that it included care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave. However, in mid-March, the landscape of leave entitlements available to employees for COVID-19 related school and childcare closures began to radically expand. Several cities in California responded to the COVID-19 pandemic with an expansion of their local paid sick leave ordinances to cover leave necessitated by the closure of a school or childcare due to a COVID-19 public health emergency.

Furthermore, the federal government passed the Families First Coronavirus Response Act (FFCRA), which provided paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID related reasons. FFCRA was limited to employers with under 500 employees, and smaller employers of 50 or less were also potentially exempted.

Since mid-March, the Cities of Los Angeles, San Francisco, and San Jose, as well as the County of Los Angeles, have also passed local supplemental paid sick leave ordinances that require paid leaves for employees caring for children whose schools or childcare are not available due to COVID-19. These ordinances only covered larger employers exempted from the FFCRA requirements.

As the closures continue and many childcare facilities announce they will remain closed through the summer months, employees will likely exhaust their various paid leave allotments, whether through existing policies or new requirements. To aid with this upcoming issue, the California legislature is considering an amendment to the state’s Paid Family Leave program to allow employees to obtain income replacement under the unemployment insurance code for COVID caused school closures. Senate Bill 943 would authorize wage replacement benefits for employees who take time off to care for a minor child whose school is closed or to care for a special needs child or adult due to the COVID outbreak.

The present version of Senate Bill 943 limits the entitlement’s application to employers with 500 or more employees or fewer than 50 employees. If passed, this amendment will sunset on June 1, 2021. The amendment contains an urgency clause, which means if signed by the governor, it will go into effect immediately to provide immediate support to employees.