Episode 159: School’s Back in Session: Recap of Leaves Available to Working Parents

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Employment Law Council with the California Chamber of Commerce. Well, I can't believe it, but summer is already over for many kids and it is back to school time. It feels like the first time in years that we've had a more quote unquote normal return to school. And even if it's not as normal as we remember, we have become hardened veterans of the pandemic change, juggling work responsibilities with school functions as kids return to school. Over the coming weeks, we here at the Chamber thought it would be a great time to refresh everybody on issues that may pop up over the year, especially as we return to fun school activities like field trips and guest speakers that may come into the school. Joining me on the podcast to ring in the new school year is Cal Chambers Vice President of Employment Law, Bianca Saad. Welcome back to the show, Bianca.

Thank you for having me, Matt. Always happy to be here.

So I thought we'd start with something fun. You know, late last school year I chaperoned my oldest child on a field trip to a roller skate rink, which you know, you and I have talked about before and I thought would be great team building now that we can go out to roller skate rinks again. It was fun watching people kind of struggle being on the roller skates. For the kids it was the first field trip in really more than two years and you could see all of the kids excitement and I imagine that the school saw the same thing as well. And we'll start to see the return more field trips this year. As COVID 19 situation becomes more static, the rules are more relaxed. So Bianca, there are specific leaves of absence that pertain to schools just in general. And I want to talk about a specific one first called school activities leave. So what is school activities leave?

Well, to start school activities leave is something that only applies to employers with 25 or more employees working at the same location. And what it does is it allows for employees to take protected time off, participate in a child's school or child care related activities such as searching for or enrolling children in school, kindergarten through grade 12. Or this can also be with a licensed child care provider. The leave can also be used to participate in activities of the school or the licensed child care provider.

So then what kind of activities are we talking about here? Would me chaperoning my child's field trip count as one of those?

Yes, attending a child school field trip is a great example. It could also be for other school or child care related Activities such as teacher conferences, award ceremonies, or school plays.

Okay. In addition to the activities leave portion, there's an emergency component to this leave as well, right, Bianca?

Yes. An employee can use time off to address a child care provider or school emergency. So this can be to address a number of things. So, for example, it could be if that child needs to be picked up from the school or childcare provider due to some emergency. Again, this would be something other than a planned holiday. It can also be if there's an emergency due to behavioral or discipline problems or due to the closure or unexpected unavailability of that school or childcare provider. And then finally, the emergency reason could include a natural disaster such as fire, earthquake, or flood.

So this sounds like there's opportunity for employers to take a lot of leave throughout the school year. Are there any kind of limitations to this leave?

There are. So there is a limitation of 40 hours a year, and that can also be further limited to eight hours a month. Now, something to note is that monthly limitation does not apply if the reason for the leave is due to an emergency.

So with the pandemic, we've been starting to see leaves of absences piled on. You know, when you say things like 40 hours or 80 hours, we start to think of things like supplemental paid sick leave we've had before, that we have to pay out as employers. Do we have to pay an employee for leave when they take it for school activities?

No, we do not need to pay our employees for this leave. It is unpaid. But you can either require vacation, vacation usage by policy, or an employee can choose to use their time off if you don't require it.

But Bianca, this still sounds like it could be ripe for abuse, right? It's still 40 hours job protected leave. So can employers require notice, documentation? How can they kind of control and ensure that the leave is being used for the purposes for which it was intended?

Yes, employers do have the ability to require advance notice, as is reasonable given the reason for the leave. And they can also require documentation of the activity. So that would be coming from the school or the childcare provider. Again, going back to your example, Matt, where you joined your son on a school field trip, some documentation that's coming from the school verifying that that's the activity that you were engaged in.

Okay, so I want to talk about another scenario from my past. I do this periodically on the podcast as I'm kind of an open book, as we all know. But back in high school, people might be shocked to hear about this, but I got suspended from high school for fighting the only time I've really ever been in trouble in my entire life. But I was required to be picked up by my parents and I was suspended out of school for three days. Now, it's my understanding that there's some leave out there for parents to be able to use if they have to come to school for that reason. What does that look like, Bianca?

Yeah, so there's something in California known as school appearance leave. And really where this comes from is that under California's education code, schools can require a parent or a guardian to appear at school with the child who has been suspended. So in this situation, all employers must allow that employee in that situation to take unpaid time off. Now, we can require that the employee provide documentation, again verifying the need to appear in the school. But bottom line is that is protected leave. And we can't discipline that employee for needing that particular time.

Well, I hope everyone's kids are good and, you know, stay above board, but sometimes things happen. It's good to remember that there are still protective leaves out there for parents, whether it's school activities, leave an emergency under that leave, or, you know, kid has a disciplinary issue that the parent has to address and leave work. So then let's talk about kids getting sick, because of course, pre pandemic, this was always an issue, right, Bianca? Everyone's in school, especially as we get to the winter months and things get passed around. So where are we on Covid sick leave? On other sick leaves related to school? What does that landscape look like?

Well, currently COVID 19 supplemental paid sick leave, or SPSL as some refer to it, is still out there, at least until September 30th of this year, unless it gets extended. Now remember, COVID 19 supplemental paid sick leave is only going to be available in those situations where there's a school or child care closure due to COVID 19 on the premises. So it is very specific.

The SPSL can also be used to care for a child who's subject to quarantine rules or who contracts the disease. Another thing to note though is that because SPL has been around so long, we've still been operating with that same 80 hour limit. So it might be the situation where you have an employee who they've already used that 80 hours. They might not have that time available by this time in the year. Another potential option or available sick leave would be, of course, California's mandatory paid sick leave. Just that traditional sick leave that we're all familiar with. And of course, 100% of that employee's bank could be used to care for a sick child.

Now, because the last few years we've seen all sorts of different leaves and rules thrown at us, we haven't started this school year with any kind of special sick leave or additional banks for kids other than what you talked about, right?

That's correct.

All right, well, moving off of leaves, I kind of want to close this podcast with flexible scheduling. Now, flexible scheduling has been around, but it's really been a hot topic born out of the pandemic and workplace realities that we've had for the last two and a half years. To what extent do employers have to accommodate an employee's childcare or school schedule outside of these leaves that we've already discussed?

Yeah, that's a great question. And really, outside of the leaves that we've discussed, there really isn't any legal obligation to accommodate that employee's childcare or school schedule. Now, that doesn't mean that an employer can't work with the employee. That's certainly something that they can do. Of course, keeping a few things in mind. So one of the things that we have to remember is that there could be employee equity issues. So a question might be, if we're giving flexibility to our employees with school age children, what are we doing for flexibility with those employees who maybe don't have school age children? What sort of precedent are we setting? What about somebody who might need flexibility for other reasons, such as caregiving obligations that they have for an employee where they're not eligible for some other protected leave? And then finally another consideration might be around wage and hour. Right. Sometimes employers want to provide that flexibility maybe by, you know, allowing that employee to work only, you know, four ten hour days. But, but we have to keep in mind things like overtime obligations if we're wanting to look into an alternative work week schedule that allows us to do something that in and of itself is a complicated process. So these are some of the things that we have to keep in mind. But ultimately, having that clearly drafted, consistently enforced policy around schedule flexibility is going to help us as employers to avoid some of these equity issues.

Oh, well, Bianca, this was a wonderful discussion today. I think I'm going to add this podcast to the list of back to school supplies for all of our California employers. So thank you very much for joining me today for this discussion.

It was my pleasure, Matt. Thank you for having me.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chamber's podcast by visiting calchamber.com.