On July 13^th two of the largest school districts in California, Los Angeles Unified School District and San Diego Unified School District announced that the school year would start in August with students attending virtually – only. They have been joined by several school districts in Orange County, San Francisco , and Sacramento. Assisting employees as they attempt to balance work and childcare can be complicated in these difficult times.

Applicable Leaves

In recent months the federal and local governments passed paid leave laws with a focus on supporting families due to sudden school closures.

The federal Families First Coronavirus Response Act (FFCRA) provides paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID-19 related reasons. FFCRA is limited to employers with under 500 employees with smaller employers of 50 or less potentially exempted from the Act. FFCRA requires employers to provide a maximum of 80 paid hours of leave for full-time employees.

The Department of Labor (“DOL”) published a Questions and Answers Page, which provides clarity to the issue of virtual schooling. The DOL states, “[i]f 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.” As such, if an employee is FFCRA eligible he or she would be permitted to take leave under the Act.

The California Labor Commissioner has also 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, a statute that allows employees to take leave due to a school emergency. The City of San Diego’s paid leave includes 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.

Several cities and counties in California have also passed local supplemental paid sick leave ordinances requiring paid leave for employees caring for children whose schools or childcare are closed due to COVID-19. These ordinances were intended to cover larger employers not covered under the FFCRA and provide a maximum of 80 paid hours of leave. Since the FFCRA deems a closure to include virtual schooling, it would seem the same would apply for these ordinances intended to mirror the FFCRA and often reference the FFCRA in their definitions. As such, as school starts virtually in August, many employees may be seeking paid leave under the local ordinances and FFCRA to assist with virtual schooling.

Remote Work

Some employees may have already exhausted available leaves, and other employees may request to work remotely while supporting children with e-learning. If an employee is not already teleworking, there are some things employers should consider:

• Reimbursements for use of personal internet and telephone

• Remote Work/Telework Policies including maintaining confidential business information

• Minimum Salary requirements for exempt employees

• Tracking all hours worked for non-exempt employees, including meal and rest periods

Employers may also want to prepare a telework agreement to ensure that the company and the employee share an understanding of the employee’s duties and hours while working remotely.