Do we have to pay employees who have children no longer in school (due to COVID-19-related school closures) and who aren't working?

Maybe. On February 9, 2022, California created the 2022 COVID-19 Supplemental Paid Sick Leave (SPSL) law that requires certain employers to provide paid sick leave to covered employees for COVID-19-related reasons including when an employee is unable to work or telework because they are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

The new law covers private employers with 26 or more employees and certain employers defined under the Welfare and Institutions Code and it provides a specified amount of leave, based on whether the employee is full-time or part-time.

To read more about the specific amounts of leave and rate of pay for 2022 COVID-19 SPSL, please see COVID-19: Federal, State and Local Leave Issues.

In addition to state SPSL, local cities and counties may have their own supplemental paid sick leave ordinances that provide leave to take care of children when schools close due to COVID-19. Employers should review the local ordinances applicable to them to determine their local leave obligations.

Read more about COVID-19-related ordinances Local Ordinances.

There are other non-COVID-specific laws that may be applicable under these circumstances. California law requires employers with 25 or more employees working at the same location to permit employees to take time off for certain child-related activities, including to address a child-care provider or school emergency. Such an emergency includes closure or unexpected unavailability of the school or child-care provider.

Employees may take up to 40 hours each year for school activities. The leave is usually limited to eight hours per month, but employees may be able to use all 40 hours for the current school closures.

Employers can require the employee to use existing vacation, PTO or other personal leave, while on school activities/emergency leave, unless prohibited by a collective bargaining agreement. Depending on the employer’s policies, the employee may also take the leave unpaid. According to the California Labor Commissioner, a parent may also choose to use paid sick leave.

Additionally, if possible, employers may offer remote work options.