In Episode 159 of The Workplace podcast, CalChamber Labor and Employment Vice President Bianca Saad and CalChamber employment law expert Matthew Roberts provide a refresher on school-related leaves of absence and labor laws, including school activities leave, school appearance leave, sick leaves, and accommodating flexible schedules.
Summer recess is over and for many kids, it’s back-to-school time, Roberts says. After two years of COVID-19-related pandemic school closures, now is a good time for employers to refresh their knowledge of the school-related leaves of absence working parents are entitled to under the law.
School Activities Leave
Saad explains that school activities leave, which applies to employers with 25 or more employees working at the same location, allows employees to take protected time off to participate in a child’s school or childcare-related activities, such as searching for or enrolling children in school, kindergarten through grade 12.
This type of leave also may be used for employees to participate in their child’s school activities or activities with a licensed childcare provider, Saad says. For example, this leave could be used for school field trips, teacher conferences, award ceremonies, school plays, etc.
An employee also may use this time off to deal with a childcare provider or school emergency, such as if a child needs to be picked up from school due to an emergency, behavioral or discipline problems, natural disaster (fire, earthquake, flood, etc.), or due to the closure or unexpected unavailability of that school or childcare provider, Saad explains.
School activities leave is limited to 40 hours a year and can be limited to eight hours a month, she says. This monthly limitation does not apply, however, if the reason for the leave is due to an emergency. Employers are not required to pay for this leave, but employers may require that employees use their vacation time or time off bank when they use the leave.
Roberts points out that this leave sounds like it could be ripe for abuse, especially because it provides 40 hours of job-protected leave. Can employers require documentation?
Saad answers that employers can require documentation of the activity from the school or childcare provider. Employers also can require advance notice as is reasonable, given the reason for the leave.
School Appearance Leave
Under California’s Education Code, schools can require a parent or guardian to appear at the school with a child who has been suspended. If presented with this situation, an employer must allow the employee to take unpaid time off under school appearance leave, Saad explains.
Employers can require that the employee provide documentation to verify the need to appear at the school, but this is protected, so employers cannot discipline an employee for needing that time, she stresses.
Listen to the podcast to learn about what sparked this question. Hint: it involves the host’s surprising past transgression.
Sick Leaves Related to School
Unless it is extended, COVID-19 supplemental paid sick leave (SPSL) will expire on September 30. This type of leave is available when a school or childcare center closes due to COVID-19 on the premises. SPSL also can be used to care for a child who is subject to quarantine rules or who contracts COVID-19, Saad explains.
Saad notes that because SPSL has been around for so long, employers might see a situation where an employee has already used the 80 hours allowed under this leave, and the employee might not have time available by this time in the year.
In this case, a potential option would be to use an available sick leave, such as California’s mandatory paid sick leave or traditional sick leave. Of course, 100% of the employee’s bank could be used to care for a sick child.
Accommodating Flexible Scheduling
Flexible scheduling has been around for a while, but due to the pandemic and the workplace realities we’ve had for the last two years or so, it’s become a really hot topic, Roberts says.
“To what extent do employers have to accommodate an employee’s childcare or school schedule outside of these leaves that we’ve already discussed?” he asks Saad.
Saad replies that employers do not have a legal obligation to accommodate an employee’s childcare or school schedule. This does not mean, however, that an employer can’t work with the employee so long as they keep a few things in mind.
Employers must remember that there could be employee equity issues. If an employer is giving flexibility to employees with school-aged children, what are they doing for flexibility with employees who don’t have school-aged children? What sort of precedent is being set?
Employers also should think about employees who may need flexibility for other reasons, such as caregiving obligations, that are not eligible for protected leave.
Finally, employers should consider wage-and-hour issues. If an employer allows an employee to work 10-hour days, there will be overtime obligations, unless an alternative workweek schedule is agreed upon, but this can be a complicated process.
Ultimately, Saad says, having a clearly drafted and consistently enforced policy around schedule flexibility is going to help an employer avoid some of these equity issues.
