• New State Law Imposes Obligations On Employers When Terrorists Threaten Schools
  • February 9, 2016 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
  • The second half of 2015 included several incidents in California involving school closures due to terrorist threats. Most notably, on December 15, 2015, the Los Angeles Unified School District had a city-wide school closure after the District received a suspicious email regarding a potential terrorist threat. In press conferences throughout the day, LAUSD Superintendent Ramon Cortines urged employers to be flexible with employees who had children affected by the school closure. Recent amendments to the Family-School Partnership Act (Labor Code § 230.8), which went into effect on January 1st, create new obligations for employers in these circumstances.

    As we previously reported (California Expands "Parental Time Off Rights") these new amendments provide that employers with 25 or more employees are now required to permit employees with school age children to take unpaid leave to address a so-called "child care provider or school emergency." The amendments are part of the pre-existing framework of the Family-School Partnership Act, which permits employees to take up to 40 hours of unpaid protected time off to participate in their children's school activities.

    In order to qualify for this new emergency leave, the employee must be the parent, legal guardian, stepparent, foster parent or grandparent who has custody of the child or an individual who stands in loco parentis to the child. Covered children are those who are under the care of a licensed childcare provider, or are enrolled in kindergarten or grades 1 to 12.

    Under the amendments, emergency leave may be taken to address "child care provider or school emergency" when an employee's child cannot attend school or child care due to events such as: (1) closure or unexpected unavailability of the childcare provider or school (excluding planned holidays) ; (2) a natural disaster, including, but not limited to, earthquake, fire or flood; (3) the school or child care provider has requested that the child be picked up, or has an attendance policy which requires that the child be picked up from the school or child care provider (excluding planned holidays); or (4) discipline or behavioral problems. The above categories cover a large variety of so-called "emergencies" and provide protected leave when a school is closed due to terrorist threats or inclement weather. Unlike the Act's other categories of leave which restrict the annual 40 hours of leave to just 8 hours per month, an employee may use his or her full annual allotment of 40 job protected hours of emergency leave at any given time.

    Notably, employees using emergency leave are not required to provide advance notice due to the unplanned event or emergency requiring leave. However, employers are permitted to request documentation of the reason for the requested emergency leave. Documentation may be satisfied by written verification of the circumstances requiring emergency leave. Additionally, employers may request the employee to use available vacation, sick or personal leave or other paid time off to cover instances when emergency leave is needed.

    Consistent with other provisions of the Labor Code, an employee who is discharged, demoted, or otherwise retaliated against for exercising emergency leave may pursue legal remedies including reinstatement, lost wages and benefits. And, if an employer "willfully refuses" to reinstate an employee in these circumstances, the employer is subject to penalties up to three times the amount of the employee's lost wages and benefits. As a practical matter, an employer cannot penalize an employee for leaving early, arriving late, or taking additional time off to attend to childcare provider or school emergencies.

    With the recent El Niño rains, the rise in school closures due to terrorist threats, and other recent developments, employers should anticipate that employees with school age children may encounter circumstances which implicate these new emergency leave provisions. Accordingly, employers should update their leave policies regarding emergency leave and ensure that management employees are familiar with the newly enacted emergency leave provisions. Employers should also include emergency leave in their efforts to track and document employee time off.