Do we have to pay employees who have children no longer in school (due to school closures) and who are not working?

Employers have several options to consider.

Beginning March 29, 2021, California employers with 26 or more employees must provide COVID-19 Supplemental Paid Sick Leave, effective retroactively from January 1, 2021, to September 30, 2021. The new leave mandate provides two weeks of supplemental paid sick leave. Among the qualifying reasons for taking such leave is when an employee is unable to work or telework because of the need to care for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

California law also 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.

Another option is the Families First Coronavirus Response Act (FFCRA). Effective from April 1, 2020, to December 31, 2020, the law provided a new federal paid sick leave law and an emergency expansion of the Family and Medical Leave Act (FMLA) for COVID-19-related school closures. The leave mandate expired on December 31, 2020, but Congress extended the ability of employers to obtain tax credits for providing this leave to employees through September 30, 2021. In other words, employers can, at their discretion, voluntarily provide leave under the FFCRA framework for school closures and be reimbursed through tax credits. Employers should consult with legal counsel when considering voluntary extension of the FFCRA.

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

Read more about COVID-19-related leaves of absence on COVID-19: Federal, State and Local Leave Issues.

Q&As