Closed schools mean problems continue for employers, workers

Policymakers have expanded paid leave benefits for employees through a spate of new laws in recent months, but attorneys say as long as schools and day care centers are subject to closures due to COVID-19 infections, provisions that offer paid leave to employees for child care are turning out to be inadequate for both employers and workers.

The federal Families First Coronavirus Response Act, which went into effect in April, requires employers to give employees up to two weeks of paid leave so they can care for a child whose school or child care provider is closed for reasons related to COVID-19. Employees who are in the same situation, and have also worked for their employer for at least 30 days, are entitled to an additional 10 weeks of paid leave.

In both cases, employees are entitled to two-thirds of their regular rate of pay and qualify if their children are under 18. But for small businesses who may have struggled financially even before expanded leave policies were enacted, this second criteria doesn't always make sense, said Christine K. Noma, a partner at Wendel Rosen LLP who represents management.

Many teenagers arguably don't need to be supervised if they stay home from school, Noma said. "Currently the way [the federal act] is written, you're not allowed to second guess what your employee is saying" about employees needing to perform child care, she said. "An employer basically has to honor that requirement."

Ron Zambrano, who represents employees at West Coast Employment Lawyers, also suggested children over 14 may not need constant supervision, but said the provisions in the federal act may not be expansive enough.

While Zambrano thinks the provisions are necessary, "eventually there has to be a longer plan," he said, adding the requirement to provide expanded leave "is absolutely a burden on employers." The issue, Zambrano said, is whether employers should be bearing the costs of expanded leave, or the government.

"That's a policy question for the legislature right now," he said. "We're going to be doing [remote learning] in California through spring and summer of next year. What's going to happen to those parents?"

The child care provisions in the Families First Coronavirus Response Act are just one aspect of new paid leave laws that employers have been having a hard time navigating since the pandemic started, Noma said. Regulations from the Centers for Disease Control and Prevention are sometimes inconsistent with guidelines from the federal Department of Labor, she explained.

Until recently, another area of ambiguity is whether employees who may have been exposed to someone who tested positive for COVID-19 are entitled to paid leave. Under the Department of Labor guidelines, employees who are exhibiting symptoms of the disease can take paid leave -- but not those who have been merely exposed and haven't received test results yet.

But with Assembly Bill 1867, which went into effect on Sept. 9, private California businesses with more than 500 employees are required to provide paid leave to their employees who have been exposed to COVID-19.

And confusion around paid leave continues to mount, she said, noting the Department of Labor has answers to more than 100 questions on its FAQ page about the Families First Coronavirus Response Act. "Whenever people ask a bunch of questions, the Department of Labor issues new requirements," she said.