On April 20, the Department of Industrial Relations (DIR) updated its guidance[1] concerning Labor Code section 248.2 and provided its interpretation concerning the circumstances under which employees may qualify for COVID-19 Supplemental Paid Sick Leave (SPSL) due to the closure or unavailability of their child’s school or place of care.
Since the enactment of Senate Bill (SB) 95 on March 19, 2021, numerous employers have inquired as to the interpretation of this particular provision and whether employees with children in myriad school closure scenarios would qualify for SPSL for this reason. Until DIR clarified the ambiguity in the statute and provided its interpretation expressly limiting employees’ qualification for SPSL for this reason, Liebert Cassidy Whitmore interpreted this provision in such a manner that would provide SPSL for this reason on a more liberal basis in order to ensure our clients’ compliance with the statute if DIR interpreted it comparably. Now that DIR has provided its interpretation of this provision, we advise clients to modify their practices concerning the provision of this leave to align with that interpretation.
DIR provided the following interpretation concerning the necessary circumstances in order for an employee to qualify for SPSL to provide care to a child “whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises”[2]:
[A] child’s classroom in school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.
This does not include caring for a child whose school or daycare was closed before January 1, 2021.
If the school or daycare was closed on or after January 1, 2021, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.
(Emphasis added.)
While it remains uncertain as to how a court of competent jurisdiction would interpret the provision at issue, DIR’s guidance clarifies its interpretation that, in order for an employee to qualify for SPSL for this reason, the school or place of care’s closure or unavailability must be directly related to fear of COVID-19 actually being on the premises of such school or place of care, rather than a generalized concern about COVID-19.
The DIR interpretation further complicates employers’ attempts to reconcile SPSL leave obligations under Labor Code section 248.2 with the requirements necessary for employers to qualify to receive payroll tax credits available under the American Rescue Plan Act (ARPA), as discussed in prior special bulletins on that subject. Employers that elected to provide expanded Emergency Paid Sick Leave (EPSL) in order to receive payroll tax credits, will need to ensure that they continue to provide leave to employees under the more liberal and inclusive related reason provided for in the Families First Coronavirus Response Act (FFCRA) (i.e., if the employee is unable to work or telework because of the need to provide “care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.”[3]) As a result, employers that are providing the expanded EPSL must provide such leave on a more liberal basis, SPSL on a more limited basis, and track the leaves taken by employees for reasons related to a school closure separately in order to ensure compliance with both statutes.
As a result of the new DIR guidance on this subject, we recommend that employers modify their SPSL leave policy and practices to align with the updated guidance provided by DIR[4]. This will ensure that employers can demonstrate their good faith attempt to comply with the law and that employees receive the SPSL leave to which they are entitled for the qualifying reasons for such leave.
For employers that purchased our COVID-19 Personnel Policies, we will be updating policies and guidance affected by DIR’s interpretation of this provision and reissuing such policies and guidance.
LCW will be monitoring DIR guidance on this subject and will be providing additional updates as circumstances require.
[1] The DIR Guidance on COVID-19 Supplemental Paid Sick Leave provides that the Frequently Asked Questions were updated in April, but does not provide a date for any updates made in April.
[2] Labor Code § 248.2(b)(1)(G).
[3] See FFCRA, Sec. 5102(a)(5); See also Department of Labor (“DOL”) Families First Coronavirus Response Act: Questions and Answers, Questions 70, 98, 100, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#70
[4] Note: Employers should not provide SPSL to employees who do not satisfy the more limited basis for which leave for this reason may be provided according to DIR. Doing so may create a situation in which an employee exhausts SPSL entitlements (through the whole or partial use of leave for reasons related to the broader interpretation of the leave at issue) causing the employer to deny the employee subsequent use of SPSL for a reason expressly provided for in the statute and thereby violating the Labor Code due to the denial of leave covered by the statute.