By: The Saqui Law Group and Jorge Lopez Espindola
With schools contemplating whether to open or not during the COVID-19 pandemic, many parents are facing the possibility that they will be homeschooling or supervising distance learning for their kiddos this fall. This new normal raises questions for California employers on paid leave and teleworking during COVID.
Private employers with fewer than 500 employees are covered by the Families First Coronavirus Response Act (“FFCRA”) and those employers with more than 500 employees are covered by California Supplemental Paid Sick Leave. To determine the number of employees your Company employs for purposes of finding out whether the company is covered by the FFCRA or California Supplemental Paid Sick Leave, you must count all full-time and part-time employees employed within the United States at the time the employee would take leave, including individuals placed with you by a temp agency. Independent contractors are not included in calculating the number of employees for purposes of the FFCRA.
Generally, employees who are unable to work (or telework) due to the need to care for a child, or to help with distance learning, can qualify for paid sick leave under the FFCRA, but will not qualify for paid sick leave under the California Supplemental Paid Leave. Under the FFCRA, employees who work for private employers, with fewer than 500 employees, are covered. Full-time employees who are caring for a child whose school or childcare provider is unavailable for reasons related to COVID-19, are eligible for up to 12 weeks of leave (2 weeks of paid sick leave followed by 10 weeks of family and medial leave). Employees who need to help their children in distance learning also qualify for the 12 weeks of leave. The child must be under 18, or is 18 or older and incapable of self-care because of a mental or physical disability.
As a best practice, when an employee requests paid sick leave citing a reason related to COVID-19, employers must document (1) the name of the employee requesting leave; (2) the date(s) for which leave is requested; (3) the reason for leave; and (4) a statement from the employee that he or she is unable to work because of the reason.
Additionally, when an employee requests leave to care for his or her child whose school or place of care is closed, employers must also document (1) the name of the child being cared for; (2) the name of the school, (3) place of care, or child care provider that has closed or become unavailable; and (4) a statement from the employee that no other suitable person is available to care for the child.