Episode 80: COVID-19: Planning for School Closures

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers Executive Vice president and General Counsel. And with me on the podcast today are Bianca Saad and Matthew Roberts, two of Cal Chambers, employment law experts and frequent guests on the Workplace podcast. Welcome, Bianca and Matt.

Thank you, Erica.

Thanks, Erica.

Yeah.

So, gang, today we're going to be discussing a topic that has been in the news and is top of mind for so many California employers and employees. Recently, Governor Newsom announced that most public K12 schools will not reopen in the traditional sense this fall. Instead, students will be distance learning until it is considered safe to return to campus. This definitely has a lot of impact on employees and employers, doesn't it?

Yeah, absolutely. It's going to impact employers and employees across the state in ways that I think that we haven't even been able to predict yet.

I think that's so true, Bianca. So let's first start about discussing. We know that there's a couple of laws that are out there for employees who have children or or children at school to utilize in situations where maybe there's an emergency school closure or we know at the federal level there was a law that was passed, the Families first act, which is what it's commonly referred to, that was also designed for employees who needed to take time away because their child was no longer in school due to the COVID 19 pandemic. So let's first lay the foundation on what some of the legal protections there are for employees and what employers need to be aware about. And then we can also talk about some of the realities and situations that we foresee many employees and employers will be facing together as we get closer to the beginning of the school year. So, Bianca, let's first talk about what state California leave law is there out there to address school activity leave?

Yes, there is a law that we have on the books in the state of California, and this is outside of COVID 19. It's something that just has been in existence, covers Employers with 25 or more employees working at the same location. Those employers need to allow their employees to take time off for certain child related activities. This can be for a number of reasons. It can be to address a childcare provider or a school emergency, such as the closures, unexpected and initial closures that we saw relating to COVID 19. So there were employers and employees, excuse me, who are taking advantage of this leave when we first saw a lot of the school closures happen earlier this year. And it may be something that they will need to avail themselves of as we enter into the new school year. So a couple of things to note about that. One, that employees are entitled to up to 40 hours each year for that school activities leave. They're limited to eight hours per month for most activities. However, that limitation doesn't apply in emergency situations. So like I said, you know, for example, when we saw the school closures that happened earlier this year, or like we may see if schools are closing down due to Covid cases reaching high numbers, then that eight hour per month limitation would not apply. So it's just, it's important for employers to again be aware of it. If they are indeed covered again, that's 25 or more employees at the same location because this can certainly come into play as we go into the next school year.

Thank you, Bianca. So with regards to the state leave, again, it's limited to those employers that meet that company employee threshold of 25 or more employees. And it is good to note that as we've been saying throughout the COVID 19 pandemic, as it relates to the state orders and the local public health department orders and county orders when it comes to the school closures as well, there is a lot of discretion that's being given to the counties as it relates to how they are listed on the governor's watch list, so to speak. So, you know, there are different county variances. So some schools may be opening in a traditional sense, while others will not be. So it's imperative for employers and employees alike to be following what the school closure orders and mandates, how they apply to your individual employees.

So let's talk a little bit then about the Families First Coronavirus Relief Act. That was the federal law that was passed right when we started to experience the shelter in place, orders and shutdowns. And, and we know that there is a specific provision related to leave for employees when an employee is caring for a child or that childcare or school is no longer available. Matt, can you talk a little bit about what the federal Relief act entails with respect to school closures?

Yes, Erica. So the ffcra, as it's commonly known, has a provision in both of its leave allotments that discusses school closures. So the bill itself provided two different leaves of absence, an emergency paid sick leave that's available for two weeks for employees, and then an expanded FMLA provision that provides 12 weeks of leave also for school closures. In both cases, it's available where the school is closed, the daycare is closed, or childcare provider is unavailable and an employee is unable to work. Or telework because of those closures. The law applies to employers with fewer than 500 employees. And there are limited exceptions under this law. So in most cases, if you're an employer with fewer than 500 employees, you're going to be covered under this law.

So we know that this law went into effect, gosh, I want to say around April, early April, if I'm not mistaken. Is that right, Matt? Around April, yeah.

So the Department of Labor began enforcement of the law on April 1st.

Okay. So we know during that time schools were closed for most of the nation, which presumably meant that some employees were already utilizing this amount of leave that was offered.

Yes, that's right. And so that creates kind of a sticky situation for employees under the law. If they've used the emergency paid sick leave allotment already in the spring, there's no more time available to them under that leave provision because it only provided for those two weeks. It didn't provide two weeks for each occurrence of a school closure, for example. And so once those two weeks are up, they're up, at least under the current state of the law. And the same holds true for the expanded FMLA provision, where if they've used all 12 weeks, and for some employees, that was the case when they went into a shutdown in mid March and they started to be able to use it at the beginning of April, there's no leave available for them if they had to use it under those circumstances. Coming into this next school year.

Okay. So many employers and employees alike are going to be coming into the fall with some peculiar situations where you might have some employees that still have this leave time in their bank, whereas other employees do not because they had to use it early on. So let's talk a little bit about some of the issues that are going to face that employers and employees are going to face equally as it relates to the school closures and work. I mean, we know that, particularly for essential workers who need to be in the office or at their workplace to be able to work and they have children at home. For many employees, they may have to make that hard decision of, do I work or do I help my child with their education? What are some things that we can or some suggestions or thoughts that employers can keep in the back of mind as we start to approach the beginning of the school year as it relates to those employees that might be in a very difficult situation?

I think that in dealing with it, because we have this issue of only having so much time, and much of which, you know, many Employees may be in a situation where they've already used it. I think flexibility is really going to be the name of the game when it comes to dealing with, you know, the distance learning and the school situation. For employees who are covered, employers may need, you know, should talk to their employees and get a game plan to the extent possible. And they may need to look at other options like, you know, unpaid leave maybe, you know, modified schedules, reduced schedules, really figuring out what works for not only the employee, but obviously the workforce and the business. I think there's a lot of room for employers to really try to get creative. Unfortunately, that's something that they're going to have to do because of the limitations I think, that we're seeing with the current landscape as far as the leave time that is actually available.

And I think you had said two very key buzzwords through 2020, and that's creativity and flexibility. Because I think we all know as we've been moving through.

Pretty much the entirety of 2020, a lot of us have been flying by the seat of our pants and we have creative and flexible decisions so that we can continue keeping our workplace open and also ensuring the safety of our coworkers and our customers. And I think this is going to be another one of those examples with regards to flexibility. We know that there are wage and hour laws that we're going to have to adhere to when granting that flexibility. But that could include, for example, allowing an employee to perhaps work a different shift or a different schedule. I know for exempt employees, they're in a better position to, to be able to modify their schedules when we're really thinking about those wage and hour restrictions. But for hourly employees, it's a little bit trickier. Matt, with regards to the FFCRA, that 12 weeks of time was paid time, was that correct?

That is correct. So both the emergency paid sick leave and the 12 weeks under the expanded FMLA are paid time for the reason of school closures. It's paid at two thirds.

The regular rate of pay for the employee, capped at $200. The employer pays that out up front and then is able to collect a payroll tax credit on the back end after they pay out under that program.

So for employers that are looking ahead and trying to navigate through the current situation, workplace planning has been something that we've spoken about many times, and that was part of the reopening phase as well, when we went from complete shelter in place to the gradual modified orders that the governor issued. And for some of us, we are back to a more closed operation or significantly modified operation. In light of the news that we received last week from the governor when we had to start to scale back some of the openings.

Would it be a good recommendation to employers to assess their workplace and determine what employees will be impacted by these school closures, to assess what types of working arrangements might work?

Yeah, I think it's a good idea for long term planning, actually, to be honest. You know, the way the school closures work is if your county's on the monitoring list that the governor has created, your schools will not be allowed to open for the duration of while they're on the list, plus 14 days after you come off the list. So we're looking at probably a long term planning situation, which is where that creativity and flexibility comes into place and figuring out how can we change the way that the work flows in our office? We have essential employees who we feel without a doubt needs to come into the office, but we may need to get creative with how that workflow goes. And if there is an ability to get even some of the work done away from the office or remotely or at different hours outside of the school hours, that's going to be a way for both the employees and the employees to continue to work through this crisis as we enter into the fall season.

That's actually a really good point because we don't know when school's going to be back in or how long distance learning will survive. And again, this is something that we've had to continue rolling with the punches and becoming more nimble as we go through the weeks or sometimes even the days. Bianca and Matt, again I want to thank you so much for being on the podcast today. I know that you spend quite a bit of time speaking with our members on the Labor Law helpline about many issues, not just COVID 19. So it's helpful to have you as a guest on the podcast so that you can share the helpful information that you share to our members, to other business owners, HR professionals and the general our listening public if you will. With that, I'd like to close the podcast and than thank all of you for joining us today on the workplace. Please comment, share and subscribe to Cal Chambers Podcast by visiting calchamber. Com.