Legal Update Memo No. 12-2021- 2021-2022 Annual Notice to Parents (K-12)

Download pdf: 12-2021 2021-22 Annual Notice to Parents (KAS) w attc.

Consistent with Education Code section 48980 and other state and federal laws which require districts to annually notify students, parents, and guardians of their legal rights and responsibilities, attached is a form Annual Notice to Parents appropriate for use in the 2021-2022 school year.

The attached Annual Notice to Parents will satisfy a school district’s obligations under Education Code section 48980 and other state and federal laws addressing annual notice requirements.  However, please be aware that the attached Annual Notice to Parents:

  • Provides only summary notification to parents for annually required notices; and
  • Does not satisfy any specific circumstance notifications that may be required under state and/or federal law, which will vary from district to district and may vary from school site to school site.

Notes and Changes for the 2021-2022 Notification 

Please note the following for the 2021-2022 Annual Notice to Parents:

  • Scoliosis Screening Notice May Not Be Required: Education Code section 49452.5, which requires school districts to provide for scoliosis screenings for all female pupils in grade 7 and all male pupils in grade 8, was suspended pursuant to the Governor’s Budget Act of 2020 for the 2020-21 fiscal year.  As a result, school districts could exercise their discretion as to whether to provide this service since it was not mandated.

Please be advised that in approximately July 2021, the California Department of Finance will advise the California Department of Education if this mandate will continue to be suspended for the 2021-22 school year.  We anticipate that the mandate will continue to be suspended for the 2021-22 school year. However, if scoliosis screenings are mandated for the 2021-22 school year, school districts may need to provide notice to parents of this change.

  • Photographs – Directory Information: Consistent with Education Code section 49061, “directory information” does not include photographs of students, meaning that photographs of students are “pupil records” and cannot be released without parent/guardian consent. “Directory information” under federal law could include photographs, and some districts have included photographs in the definition of directory information in their board policies. Please note that we have included a section within the attached “Acknowledgement of Parent or Guardian of Annual Rights Notification” giving the district permission to publish photographs of students.  Districts are advised to check their board policies to ensure the definition they have adopted for “directory information” correlates to the definition in the Annual Notice to Parents, and if it does not, to make any necessary changes.  If a parent or guardian directs the district not to release “directory information,” the district needs to be aware of the definition it has adopted to ensure compliance.

Additional Documents That Must be Included in the Annual Notice to Parents

As always, each school district is required to provide, in addition to the Annual Notice to Parents, documents that are specific to each individual school district.  The following documents must be included with the Annual Notice to Parents:

  • Your district’s policy on sexual harassment;
  • A listing of all pesticides that will be used at each school site in your district (including the Internet address developed by the Department of Pesticide Regulation pursuant to Food and Agricultural Code section 13184 for access to information on pesticides and pesticide use reduction, and the parent option to register to receive notification of individual pesticide applications at the school facility) and, if using pesticides not listed in Education Code 17610.5, the district’s integrated pest management (IPM) plan or the district website address where the plan may be viewed;
  • The schedule of all minimum and pupil-free staff development days for your district (your school calendar);
  • Your district’s policy on parent classroom visits;
  • Your district’s Uniform Complaint Procedures, which should include an explanation of the process, opportunity to appeal to the California Department of Education (Education Code section 262.3), district persons responsible for processing complaints, and a statement that additional civil law remedies may be available under state and federal discrimination laws. Each district’s Uniform Complaint Procedures, typically found in Board Policy and Administrative Procedure 1312.3, should be updated annually to ensure compliance with current laws.

If your school district offers any of grades 9 to 12, you must provide information about college admission requirements and career technical education with your Annual Notice to Parents:

  • Pursuant to Education Code section 51229, each district offering grades 9-12 is required to provide the parent or guardian of each minor pupil enrolled in any of those grades in the district with an annual written notification of the College Admission Requirements and Career Technical Education. This written notice, to the extent possible, shall not exceed one page in length and must include the following:
  • A brief explanation of the college admission requirements;
  • A list of the current University of California and California State University websites and a list of high school courses that have been certified by the University of California as satisfying the requirements for admission to the University of California and the California State University;
  • A brief description of career technical education, as defined by the CDE;
  • The internet address for the portion of the website of the CDE where students can learn more about career technical education; and
  • Information about how students may meet with school counselors to help them choose courses at their school that will meet college admission requirements and/or enroll in career technical education courses, or both.
  • In addition, if a district elects to allow a career technical education course to satisfy the visual/performing arts or foreign language graduation requirement, the district shall provide information about the high school graduation requirements of the district and how each requirement satisfies or does not satisfy the subject matter requirements for admission to state public colleges, as well as a complete list of career technical education courses offered by the district that satisfy the subject matter requirements for admission to the state public colleges, and which of the specific admission requirements these courses satisfy. It is recommended that the College Admission Requirements and Career Technical Education notification be included with your Annual Notice to Parents.

Other Relevant Laws to Consider

As described above, several state and federal laws require that many documents and other information be made available to parents/guardians upon request, including, but not limited to, each school’s Prospectus of School Curriculum and district non-discrimination policies. In satisfaction of these requirements, the 2021-2022 Annual Notice to Parents provides that such information may be obtained either from the student’s school or the district office (as appropriate).  Some laws require notifying parents or guardians in particular situations that do not apply to all students or all schools.

Please review the following sections carefully to ensure that your district’s policies and procedures and your Annual Notice to Parents are consistent with the relevant laws.

Code of Conduct for Employee-Pupil Interactions

Pursuant to Education Code section 44050, LEAs that maintain an employee code of conduct containing a section on employee interactions with pupils must provide a written copy of the section to the parent or guardian of each pupil at the beginning of the school year. This requirement is satisfied by including the relevant section in the Annual Notice to Parents. If you have a code of conduct containing a section on employee interactions with pupils, we strongly encourage you to include the language in your Annual Notice to Parents.

Immigrant Pupils Rights

Pursuant to Education Code section 234.7(d)(1), LEAs must provide information to parents and guardians regarding their children’s right to a free public education regardless of immigration status or religious belief. This information has been incorporated into the Annual Notice to Parents, but such information may also be distributed by any other cost-effective means determined by the LEA.

Long-Term English Learners

Under Education Code section 440, each parent or guardian must be given notice when their child is assessed for English language proficiency no later than 30 days after the start of the school year. Education Code section 313.2 expanded these parental notification requirements to include the following additional information: 1) whether the child is a long-term English learner or at risk of becoming a long-term English learner; 2) the manner in which the English language development instruction will meet the educational needs of long-term English learners or those at risk of becoming long-term English learners; and 3) the manner in which the program for English language development instruction will help long-term English learners or those at risk of becoming long-term English learners develop English proficiency and meet age-appropriate academic standards.

School Accountability Report Card

Pursuant to Education Code section 35256, the governing board of each school district shall annually issue a School Accountability Report Card for each school in the district, publicize those reports, and notify parents or guardians of pupils that a hard copy will be provided upon request.  Each district must make hard copies of its annually updated report card available, upon request, on or before February 1st of each year. We strongly encourage that each district include this information in its Annual Notice to Parents.

Title I / Every Student Succeeds Act

For districts that may be receiving Title I and/or any other federal funds, please note that the Annual Notice to Parents is not intended to satisfy other specific notification obligations you may have under federal law, including ESSA. Although the Annual Notice to Parents does contain some parent notifications in satisfaction of ESSA, the scope of such notice is limited to providing only those notices universally required of all districts. Similar to the ESSA requirements, California has enacted the Open Enrollment Act,[1] which requires districts with a “low-achieving school” to notify the parents at that school of their option to transfer to another public school served by the district of residence or another school district. Districts should consult with their Title I and other special program coordinators as well as School and College Legal Services with respect to any additional notifications that may be required.

Title VI of the Civil Rights Act of 1964

Additionally, Title VI of the Civil Rights Act of 1964 requires that each district have a policy of non-discrimination on the basis of race, color, national origin, sex, age, or disability. We recommend that this policy be included with your Annual Notice to Parents.

Title IX of the U.S. Education Amendments of 1972

Title IX of the U.S. Education Amendments of 1972 requires that each district provide a notice of non-discrimination and state that the district does not discriminate on the basis of sex in its educational programs and activities. The notice must state that questions regarding Title IX may be referred to the school’s Title IX coordinator or the Office of Civil Rights. The district must notify all students and employees of the name or title, office address, telephone number, and email address of each district’s designated Title IX coordinator(s).

Federal Race and Ethnicity Data Collection Reporting

Based upon final guidance from the U.S. Department of Education regarding the collection of race and ethnicity data for students and staff, the California Department of Education has revised its data collection requirements using the California Pupil Achievement Longitudinal Data System (CALPADS). School districts are obligated to comply with the reporting requirements using a two-part question (https://www.cde.ca.gov/ds/dc/es/refaq.asp). It is recommended that the Annual Notice to Parents be used as the mechanism for distributing the information to students.

Translation

For those districts subject to Education Code section 48985,[2] the 2021-22 Annual Notice to Parents has been translated into Spanish and is attached for your convenience. The California Department of Education has established a Clearinghouse for Multilingual Documents to help school districts meet state and federal requirements for document translation and parental notification, including the requirements in Education Code section 48985, Every Student Succeeds, and other legislation. The Clearinghouse may be accessed at the following web address: http://www.cde.ca.gov/Ls/pf/cm/.

Bullying

Districts are required to adopt and publicize a policy prohibiting discrimination, harassment, intimidation, and bullying, based on actual or perceived characteristics. The policy must include a statement that the policy applies to all acts related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district.  Districts are required to post the policy in all schools and offices, including staff lounges and student government meeting rooms and the policy must be translated as required by Education Code section 48985. It is recommended that the Annual Notice to Parents be used as a mechanism for distributing the policy to students. 

Sections of the Annual Notice to Parents Required Under Specific Circumstances

Lastly, please find below a list of updated code sections that require annual notice to parents only under specific circumstances. Most of these code sections have not been added to the Annual Notice to Parents as they may not be applicable to all students and specific policies may vary from district to district. It is the responsibility of the individual school district to notify parents regarding the following sections: 

  • Education Code section 310 – Multilingual Education

If a school district implements a language acquisition program under this section, information on the types of language programs available and a description of each program must be given to parents and guardians in the annual parent notice or upon enrollment.

  • Education Code section 49073.6 – Information from Social Media

If your district has adopted a program or entered a contract for services to gather and maintain information from social media[3] about enrolled students, the district must provide certain information to the parent or guardian of any student whose information has been gathered. This information may be included in the Annual Notice. The parent or guardian of the student whose information has been gathered must be notified of the following: 1) the student’s information is being gathered from social media; 2) the process by which the student or their parent or guardian can access and examine the collected information; and 3) the process by which the student or their parent or guardian can request the correction or removal of information gathered.

  • Education Code section 35182.5 – Electronic Products or Services that Disseminate Advertising

If a district enters into a contract for electronic products or services that requires the dissemination of advertising to students, the district must provide written notice to the parents or guardians of the students that the advertising will be used in the classroom or other learning centers.

  • Education Code section 69432.9 – Cal Grant Program

Districts must notify students enrolled in 11th grade and, for pupils under 18 years of age, his or her parent or guardian, that the students will be deemed Cal Grant applicants unless the students opt out of being automatically deemed a Cal Grant applicant. If 11th grade students do not opt out,[4] their grade point average will be submitted electronically. This written notice must be provided to all 11th grade students, and their parents (for students who are under 18), by January 1 of the student’s 11th grade year. The notice must specify the process and time by which students may opt out within a set period of time, but not less than 30 days. The notice must indicate when the school will send grade point averages to the commission and the submission deadline of October 1.

  • Health and Safety Code sections 120325 & 120335 – Immunizations

Immunizations are discussed in the Annual Notice to Parents under “Communicable Diseases.” However, districts may want to provide supplemental information detailing the specifics of the immunization requirements due to the impact it may have on students.  The law requires all students entering kindergarten, including transitional kindergarten, or advancing from sixth to seventh grade in the district, or prior to their first admission to the district, to comply with the immunization requirements of Health and Safety Code section 120335, unless the student provides the district with a valid exemption from a licensed physician, which, after January 1, 2021, must comply with the requirements set forth in Health and Safety Code section 120372. New personal-belief exemptions filed with the district will no longer be accepted.  Documented immunizations appropriate for each student’s age include (1) Diphtheria, (2) Haemophilus influenzae type b, (3) Measles, (4) Mumps, (5) Pertussis (whooping cough), (6) Poliomyelitis, (7) Rubella, (8) Tetanus, (9) Hepatitis B, (10) Varicella (chickenpox), and any other diseases deemed appropriate by the department. Students qualified for an individualized education program may access special education and related services. Full immunization against Hepatitis B shall not be a condition of admittance to 7th grade. All students entering 7th through 12th grades must be immunized with a pertussis (whooping cough) vaccine booster called Tdap. This affects all students – current, new, and transfers – in public and private schools. It is recommended that the immunization notification be included with the Annual Notice to Parents.

  • Education Code section 32221.5 – Pupils Insurance for Athletic Teams

Requires school districts that elect to operate an interscholastic athletic team(s) to include the following statement, printed in boldface type of prominent size, in all offers of insurance coverage that are sent to members of school athletic teams:

“Under state law school districts are required to ensure that all members of school athletic teams have accidental injury insurance that covers medical and hospital expenses.  This insurance requirement can be met by the school district offering insurance or other health benefits that cover medical and hospital expenses.  

Some pupils may qualify to enroll in no-cost or low-cost local, state, or federally sponsored health insurance programs.  Information about these programs may be obtained by calling ____________ [Insert toll-free telephone number].”[5]

  • Education Code section 49475 – Concussions and Head Injuries in Athletics

Requires districts that elect to offer athletic programs to provide, on a yearly basis, a concussion and head injury information sheet, which must be signed and returned by the athlete and the athlete’s parent or guardian before the athlete may initiate practice or competition.

  • Education Code section 48980(m) – Transfer of Student with Felony Conviction

A school district that elects to adopt a policy regarding the transfer of pupils convicted of a violent felony or misdemeanor, pursuant to Education Code section 48929, shall inform parents or guardians of the policy in the Annual Notice to Parents.

  • Education Code section 49452.8 – Pupil Health: Oral Health Assessment

Requires public schools to send a notification of the oral health assessment requirements, including a standardized form that can be used for the assessment or on which the parent or legal guardian can indicate one of several specified reasons why an oral health assessment by a licensed dentist or other registered dental health professional assessment cannot be completed for any pupil enrolled in kindergarten in a public school, or in first grade if the pupil was not previously enrolled in kindergarten in a public school.

  • Education Code section 44808.5 – High School Open Campus

If a school district allows high school students to leave campus at lunchtime, a copy of the following notice set forth below in bold letters must be included as part of the Annual Notice to Parents:

The governing board of the __________ School District, pursuant to Section 44808.5 of the Education Code, has decided to permit the pupils enrolled at _____________ High School to leave the school grounds during the lunch period. 

Section 44808.5 of the Education Code further states:

“Neither the school district nor any officer or employee thereof shall be liable for the conduct or safety of any pupil during such time as the pupil has left the school grounds pursuant to this section.” 

  • Education Code section 35211 – Driver’s Training

School districts that maintain a driver’s training course must advise parents of students participating in the course of the civil liability that will be imposed on the parent or guardian, and insurance coverage carried by the district for such courses, specifically including any limitations of such coverage as it relates to parent liability.

  • Education Code section 11503 – Programs to Encourage Parental Involvement

Districts receiving funds under the federal Elementary and Secondary Education Act (20 U.S.C. Sec. 6301 et seq.), as amended by the federal Every Student Succeeds Act are required to develop a written parent and family engagement program for each school in the district that receives these funds. Each year, these districts must provide:

  • An annual statement identifying specific objectives of the program.
  • An annual review and assessment of the program’s progress in meeting those objectives with the review being made available to parents upon request.
  • Title 20 of the United States Code section 1232h – Protection of Pupil Rights

The Protection of Pupil Rights (“PPRA”) requires that districts develop policies that obligate them to obtain prior written consent from parents prior to their student participating in a survey containing one or more of the following items:

(1)  political affiliations or beliefs of the student or the student’s parent;

(2)  mental or psychological problems of the student or the student’s family;

(3)  sex behavior or attitudes;

(4)  illegal, anti-social, self-incriminating, or demeaning behavior;

(5)  critical appraisals of other individuals with whom respondents have close family relationships;

(6)  legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;

(7)  religious practices, affiliations, or beliefs of the student or student’s parent; or

(8)  income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

The PPRA requires that school districts provide parents with annual notice of these policies and parents’ rights under the policies at the beginning of the school year and within a reasonable period of time after any substantive change in such policies, including the process to opt their children out of participation in certain activities, and the dates during the school year when the district schedules: (a) surveys requesting personal information; (b) physical examinations or screenings; and (c) collection of personal information from students for marketing or sale.

California has also adopted a similar requirement to the PPRA in Education Code section 51513, which requires written parent consent prior to their students participating in a survey, test, questionnaire, or examination regarding the pupil’s or the pupil’s family’s beliefs, morality, and similar issues.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Enclosures 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2021 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code sections 48350 et seq.

[2] Where 15 percent or more of pupils enrolled speak a primary language other than English, all notices, reports and statements sent to the parent or guardian must be written in the primary language in addition to being written in English.

[3] “Social media” is defined as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Education Code section 49073.6(a)(2).)

[4] Until a pupil turns 18 years of age, only a parent or guardian may opt the pupil out. Once a pupil turns 18, only the pupil may opt out.

[5] Under the law, the toll-free telephone number can be for: 1) The Healthy Families Program; 2) Medi-Cal; 3) Any other comparable toll-free telephone number for a no-cost or low-cost local, state, or federally sponsored health insurance program. (Education Code § 32221.5, subd. (c).) The number for Medi-Cal, 1-800-880-5305, will meet this requirement.

REVISED Legal Update Memo No. 08-2021(CC)- Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) – Model Notice Available (CCD)

Download pdf: 08-2021(CC) REVISED Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (NLK) w Att

Note: Changes from the original Legal Update are highlighted in red bold font for your convenience.

Beginning March 29, 2021, Labor Code section 248.2 requires employers with more than 25 employees to provide Supplemental Paid Sick Leave (SPSL) to employees who are unable to work or telework for any of the following Qualifying Reasons (QR):

  1. Employee is subject to a COVID-19 quarantine or isolation period as specified in an order or guideline by the California Department of Public Health (CDPH), federal Center for Disease Control (CDC) or a local health officer with jurisdiction over the workplace.[1]
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Employee is attending an appointment to receive a COVID-19 vaccine.
  4. Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. Employee is caring for a family member[2] who is subject to an order or guidelines described in QR 1 or 2, above.
  7. Employee is caring for a child[3] whose school, place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. (Lab. Code 248.2(b)(1))

NOTE: SPSL is a new statutory leave entitlement that is in addition to leave previously provided under the Families First Corona Virus Response Act, which expired December 31, 2020.

LEAVE ALLOTMENT 

The number of SPSL hours a “covered employee”[4] is entitled to is based on the number of hours the employee works or is scheduled to work. (Lab. Code 248.2(b)(2))

  • Full-Time/40-Hour Employees: Up to 80 hours for covered employees who are full time or scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took SPSL leave.
  • Less than 40-Hour Employees: The total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
  • Employees with a Variable Schedule for Six or More Months: 14 times the average number of hours the covered employee worked each day in the six-month period preceding the date the covered employee took SPSL.
  • Employees with a Variable Schedule for More than 14 Days and Less than Six Months: The average number of hours the covered employee worked over the entire period the covered employee has worked for the employer.
  • Employees with a Variable Schedule for 14 or Fewer Days: The total number of hours the covered employee works a variable schedule over a period of 14 or fewer days.

(Lab. C. 248.2(b)(1))

SPSL is in addition to paid leave an employee is entitled to receive under the Health Workplaces Healthy Families Act.   (Lab. C. 248.2(b)(2)(D))

RIGHT TO IMMEDIATE USE OF SPSL 

Covered employees are entitled to use SPSL immediately upon “oral or written request” before use of other paid or unpaid leave provided by the employer. (Lab. C. 248.2(b)(2)(e) and (4))  Employers are not permitted to require a health care provider’s certification before allowing an employee to use SPSL, but if the employer acquires information that the employee requested SPSL for an invalid purpose, a reasonable inquiry for supporting documentation may be made.[5]

When covered employees are excluded from the workplace pursuant to the Title 8 Emergency Temporary Standards due to COVID-19 exposure in the workplace[6], an employer may require covered employees to first exhaust their SPSL to satisfy the employer’s Title 8 obligation to continue compensation and benefits during the exclusion period.  (Lab. C. 248.2(b)(5))

RATE OF COMPENSATION  

Non-Exempt Employees: SPSL must be compensated at the highest of:

  1. The covered employee’s regular rate of pay for the work week the covered employee uses SPSL,
  2. The rate calculated by dividing the Covered employee’s total wages, not including overtime, by the employee’s total hours worked in full pay periods of the prior 90 days of employment,
  3. The state minimum wage,
  4. The local minimum wage to which the Covered employee is entitled.

Exempt Employees: The rate calculated in the same manner as the employer calculates other forms of paid leave.  (Lab. Code 248.2(b)(3)(A)) 

MAXIMUM COMPENSATION 

Employers are not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee. (Lab. Code 248.2(b)(3)(c))

A covered employee who has reached the maximum compensation under section 248.2 may elect to use other available paid sick to receive full compensation. (Lab. C. 248.2(b)(3)(c))

OTHER EMPLOYER-PROVIDED SUPPLEMENTAL BENEFITS 

If an employer has paid an employee another supplemental benefit for leave taken after January 1, 2021, for one of the QRs, at a rate at least equal to the rate required under section 248.2, the employer may count the hours of the other supplemental benefits toward the total number of SPSL hours the employer is required to provide.  (Lab. C. 248.2(c))  Some districts and county offices of education have provided such supplemental benefits by policy or memorandum of understanding with exclusive representatives.  If the rate paid was not at least equal to the rate required by section 248.2, see RETROACTIVE APPLICATION, below. 

EFFECTIVE PERIOD/RETROACTIVE APPLICATION OF SECTION 248.2 

Section 248.2 went into effect on March 29, 2021, and is retroactive to January 1, 2021.

If an employer did not compensate an employee who took leave after January 1, 2021, for one of the specified QRs, at a rate at least equal to the rate required by section 248.2, “upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.”  (Lab. C. sec. 248.2(e)(2)(A))  Payment is due “on or before the payday for the next full pay period after the oral or written request of the covered employee.” (Lab. C. 248.2(e)(2)(C))

The number of hours paid retroactively “shall count toward the total hours of [SPSL] that the employer is required to provide [under section 248.2].” (Lab. C. 248.2(e)(2)(B))

Section 248.2 expires on September 30, 2021, “except that a covered employee taking [SPSL] at the time of expiration…shall be permitted to take the full amount of [SPSL] to which the covered employee otherwise would have been entitled.”  (Lab. C. sec. 248.2(f)) 

NOTICE TO EMPLOYEES/RECORD KEEPING

Employers are required to display a poster in a conspicuous location of employees’ rights to accrue, request, and use paid sick days, the amount of sick days, and the terms of use of paid sick days.  The California Labor Commissioner has issued a model notice,[7] See attached copy. For employees who do not frequent the workplace notice may be given by email.

Employers are also required to “keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee….”  (Lab. Cod. 247.5)  As SPSL is an entitlement to leave that is distinct from other sick leave available to local educational agency employees, employers should maintain a record of accrued and used SPSL that is separate from records of other types of sick leave.    

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2021 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] The California Department of Industrial Relations has clarified that the “order or guidelines must be specific to the covered employee’s circumstances.  A general stay-at-home order would not count.”  DIR FAQs (https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html)

[2]Family member” means any of the following:

(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.

(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(3) A spouse.

(4) A registered domestic partner.

(5) A grandparent.

(6) A grandchild.

(7) A sibling.

(Lab. C. 245.5(c),  248.2(b)((1)(F) – Kin Care Definitions)

[3] See f.n. 1, paragraph 1.  “Child” is not restricted by age or require that a child over 18 be incapable of self-care.

[4]Covered employee” means an employee who is unable to work or telework for an employer because of one of the QRs.  (Lab. C. 248.2(a)(3))

[5] DIR FAQs (https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html)

[6] “COVID-19 exposure” means being within six (6) feet of a COVID-19 Case for a cumulative total of 15 or more minutes within a 24-hour period.

[7] Model Notice (https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf)

 

REVISED Legal Update Memo No. 11-2021- Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) – Model Notice Available (K-12)

Download pdf: 11-2021 REVISED Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (NLK) w Att

Note: Changes from the original Legal Update are highlighted in red bold font for your convenience.

Beginning March 29, 2021, Labor Code section 248.2 requires employers with more than 25 employees to provide Supplemental Paid Sick Leave (SPSL) to employees who are unable to work or telework for any of the following Qualifying Reasons (QR):

  1. Employee is subject to a COVID-19 quarantine or isolation period as specified in an order or guideline by the California Department of Public Health (CDPH), federal Center for Disease Control (CDC) or a local health officer with jurisdiction over the workplace.[1]
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Employee is attending an appointment to receive a COVID-19 vaccine.
  4. Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. Employee is caring for a family member[2] who is subject to an order or guidelines described in QR 1 or 2, above.
  7. Employee is caring for a child[3] whose school, place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. (Lab. Code 248.2(b)(1))

NOTE: SPSL is a new statutory leave entitlement that is in addition to leave previously provided under the Families First Corona Virus Response Act, which expired December 31, 2020.

LEAVE ALLOTMENT 

The number of SPSL hours a “covered employee”[4] is entitled to is based on the number of hours the employee works or is scheduled to work. (Lab. Code 248.2(b)(2))

  • Full-Time/40-Hour Employees: Up to 80 hours for covered employees who are full time or scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took SPSL leave.
  • Less than 40-Hour Employees: The total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
  • Employees with a Variable Schedule for Six or More Months: 14 times the average number of hours the covered employee worked each day in the six-month period preceding the date the covered employee took SPSL.
  • Employees with a Variable Schedule for More than 14 Days and Less than Six Months: The average number of hours the covered employee worked over the entire period the covered employee has worked for the employer.
  • Employees with a Variable Schedule for 14 or Fewer Days: The total number of hours the covered employee works a variable schedule over a period of 14 or fewer days.

(Lab. C. 248.2(b)(1))

SPSL is in addition to paid leave an employee is entitled to receive under the Health Workplaces Healthy Families Act.   (Lab. C. 248.2(b)(2)(D))

RIGHT TO IMMEDIATE USE OF SPSL 

Covered employees are entitled to use SPSL immediately upon “oral or written request” before use of other paid or unpaid leave provided by the employer. (Lab. C. 248.2(b)(2)(e) and (4))  Employers are not permitted to require a health care provider’s certification before allowing an employee to use SPSL, but if the employer acquires information that the employee requested SPSL for an invalid purpose, a reasonable inquiry for supporting documentation may be made.[5]

When covered employees are excluded from the workplace pursuant to the Title 8 Emergency Temporary Standards due to COVID-19 exposure in the workplace[6], an employer may require covered employees to first exhaust their SPSL to satisfy the employer’s Title 8 obligation to continue compensation and benefits during the exclusion period.  (Lab. C. 248.2(b)(5))

RATE OF COMPENSATION  

Non-Exempt Employees: SPSL must be compensated at the highest of:

  1. The covered employee’s regular rate of pay for the work week the covered employee uses SPSL,
  2. The rate calculated by dividing the Covered employee’s total wages, not including overtime, by the employee’s total hours worked in full pay periods of the prior 90 days of employment,
  3. The state minimum wage,
  4. The local minimum wage to which the Covered employee is entitled.

Exempt Employees: The rate calculated in the same manner as the employer calculates other forms of paid leave.  (Lab. Code 248.2(b)(3)(A)) 

MAXIMUM COMPENSATION 

Employers are not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee. (Lab. Code 248.2(b)(3)(c))

A covered employee who has reached the maximum compensation under section 248.2 may elect to use other available paid sick to receive full compensation. (Lab. C. 248.2(b)(3)(c))

OTHER EMPLOYER-PROVIDED SUPPLEMENTAL BENEFITS 

If an employer has paid an employee another supplemental benefit for leave taken after January 1, 2021, for one of the QRs, at a rate at least equal to the rate required under section 248.2, the employer may count the hours of the other supplemental benefits toward the total number of SPSL hours the employer is required to provide.  (Lab. C. 248.2(c))  Some districts and county offices of education have provided such supplemental benefits by policy or memorandum of understanding with exclusive representatives.  If the rate paid was not at least equal to the rate required by section 248.2, see RETROACTIVE APPLICATION, below. 

EFFECTIVE PERIOD/RETROACTIVE APPLICATION OF SECTION 248.2 

Section 248.2 went into effect on March 29, 2021, and is retroactive to January 1, 2021.

If an employer did not compensate an employee who took leave after January 1, 2021, for one of the specified QRs, at a rate at least equal to the rate required by section 248.2, “upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.”  (Lab. C. sec. 248.2(e)(2)(A))  Payment is due “on or before the payday for the next full pay period after the oral or written request of the covered employee.” (Lab. C. 248.2(e)(2)(C))

The number of hours paid retroactively “shall count toward the total hours of [SPSL] that the employer is required to provide [under section 248.2].” (Lab. C. 248.2(e)(2)(B))

Section 248.2 expires on September 30, 2021, “except that a covered employee taking [SPSL] at the time of expiration…shall be permitted to take the full amount of [SPSL] to which the covered employee otherwise would have been entitled.” (Lab. C. sec. 248.2(f)) 

NOTICE TO EMPLOYEES/RECORD KEEPING

Employers are required to display a poster in a conspicuous location of employees’ rights to accrue, request, and use paid sick days, the amount of sick days, and the terms of use of paid sick days.  The California Labor Commissioner has issued a model notice,[7] See attached copy. For employees who do not frequent the workplace notice may be given by email.

Employers are also required to “keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee….”  (Lab. Cod. 247.5)  As SPSL is an entitlement to leave that is distinct from other sick leave available to local educational agency employees, employers should maintain a record of accrued and used SPSL that is separate from records of other types of sick leave.    

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2021 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] The California Department of Industrial Relations has clarified that the “order or guidelines must be specific to the covered employee’s circumstances.  A general stay-at-home order would not count.”  DIR FAQs (https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html)

[2]Family member” means any of the following:

(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.

(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(3) A spouse.

(4) A registered domestic partner.

(5) A grandparent.

(6) A grandchild.

(7) A sibling.

(Lab. C. 245.5(c),  248.2(b)((1)(F) – Kin Care Definitions)

[3] See f.n. 1, paragraph 1.  “Child” is not restricted by age or require that a child over 18 be incapable of self-care.

[4]Covered employee” means an employee who is unable to work or telework for an employer because of one of the QRs.  (Lab. C. 248.2(a)(3))

[5] DIR FAQs (https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html)

[6] “COVID-19 exposure” means being within six (6) feet of a COVID-19 Case for a cumulative total of 15 or more minutes within a 24-hour period.

[7] Model Notice (https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf)

 

Legal Update Memo No. 11-2021- Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (K-12)

Download pdf: 11-2021 Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (NLK)

Beginning March 29, 2021, Labor Code section 248.2 requires employers with more than 25 employees to provide Supplemental Paid Sick Leave (“SPSL”) to employees who are unable to work or telework for any of the following Qualifying Reasons (“QR”):

  1. Employee is subject to a COVID-19 quarantine or isolation period as specified in an order or guideline by the California Department of Public Health (“CDPH”), federal Center for Disease Control (“CDC”) or a local health officer with jurisdiction over the workplace.
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Employee is attending an appointment to receive a COVID-19 vaccine.
  4. Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. Employee is caring for a family member[1] who is subject to an order or guidelines described in QR 1 or 2, above.
  7. Employee is caring for a child[2] whose school, place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. (Lab. Code 248.2(b)(1))

LEAVE ALLOTMENT

The number of SPSL hours a “covered employee”[3] is entitled to is based on the number of hours the employee works or is scheduled to work. (Lab. Code 248.2(b)(2))

  • 40-Hour Employees: Up to 80 hours for covered employees who are full time and scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took SPSL leave.
  • Less than 40-Hour Employees: The total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
  • Employees with a Variable Schedule for Six or More Months: 14 times the average number of hours the covered employee worked each day in the six-month period preceding the date the covered employee took SPSL.
  • Employees with a Variable Schedule for More than 14 Days and Less than Six Months: The average number of hours the covered employee worked over the entire period the covered employee has worked for the employer.
  • Employees with a Variable Schedule for 14 or Fewer Days: The total number of hours the covered employee works a variable schedule over a period of 14 or fewer days.

(Lab. C. 248.2(b)(1))

SPSL is in addition to paid leave an employee is entitled to receive under the Healthy Workplaces Healthy Families Act.   (Lab. C. 248.2(b)(2)(D)) 

RIGHT TO IMMEDIATE USE OF SPSL 

Covered employees are entitled to use SPSL immediately upon “oral or written request” before use of other paid or unpaid leave provided by the employer. (Lab. C. 248.2(b)(2)(e) and (4))

When covered employees are excluded from the workplace pursuant to the Title 8 Emergency Temporary Standards due to COVID-19 exposure in the workplace[4], an employer may require covered employees to first exhaust their SPSL to satisfy the employer’s Title 8 obligation to continue compensation and benefits during the exclusion period.  (Lab. C. 248.2(b)(5))

RATE OF COMPENSATION  

Non-Exempt Employees: SPSL must be compensated at the highest of:

  1. The covered employee’s regular rate of pay for the work week the covered employee uses SPSL;
  2. The rate calculated by dividing the covered employee’s total wages, not including overtime, by the employee’s total hours worked in full pay periods of the prior 90 days of employment;
  3. The state minimum wage; or
  4. The local minimum wage to which the covered employee is entitled.

Exempt Employees: The rate calculated in the same manner as the employer calculates other forms of paid leave.  (Lab. Code 248.2(b)(3)(A)) 

MAXIMUM COMPENSATION

Employers are not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee. (Lab. Code 248.2(b)(3)(C))

A covered employee who has reached the maximum compensation under section 248.2 may elect to use other available paid sick to receive full compensation. (Lab. C. 248.2(b)(3)(C)) 

OTHER EMPLOYER-PROVIDED SUPPLEMENTAL BENEFITS

If an employer has paid an employee another supplemental benefit for leave taken after January 1, 2021, for one of the QRs, at a rate at least equal to the rate required under section 248.2, the employer may count the hours of the other supplemental benefits toward the total number of SPSL hours the employer is required to provide.  (Lab. C. 248.2(c))  Some districts and county offices of education have provided such supplemental benefits by policy or memorandum of understanding with exclusive representatives.  If the rate paid was not at least equal to the rate required by section 248.2, see RETROACTIVE APPLICATION, below. 

EFFECTIVE PERIOD/RETROACTIVE APPLICATION OF SECTION 248.2

Section 248.2 goes into effect on March 29, 2021, and is retroactive to January 1, 2021.

If an employer did not compensate an employee who took leave after January 1, 2021, for one of the specified QRs, at a rate at least equal to the rate required by section 248.2, “upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.”  (Lab. C. sec. 248.2(e)(2)(A))  Payment is due “on or before the payday for the next full pay period after the oral or written request of the covered employee.” (Lab. C. 248.2(e)(2)(C))

The number of hours paid retroactively “shall count toward the total hours of [SPSL] that the employer is required to provide [under section 248.2].” (Lab. C. 248.2(e)(2)(B))

Section 248.2 expires on September 30, 2021, “except that a covered employee taking [SPSL] at the time of expiration…shall be permitted to take the full amount of [SPSL] to which the covered employee otherwise would have been entitled.  (Lab. C. sec. 248.2(f)) 

NOTICE TO EMPLOYEES

Employers are required to display a poster in a conspicuous location of employees’ rights to accrue, request, and use paid sick days, the amount of sick days, and the terms of use of paid sick days.  The California Labor Commissioner will make a model notice available on or before March 26, 2021.

For employees who do not frequent the workplace, notice may be given by email.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

 The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2021 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1]Family member” means any of the following:

(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.

(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(3) A spouse.

(4) A registered domestic partner.

(5) A grandparent.

(6) A grandchild.

(7) A sibling.

(Lab. C. 245.5(c),  248.2(b)((1)(F) – Healthy Families Healthy Workplaces Act Definitions)

 

[2] See footnote. 1, paragraph 1.  “Child” is not restricted by age or require that a child over 18 be incapable of self-care.

[3]Covered employee” means an employee who is unable to work or telework for an employer because of one of the QRs.  (Lab. C. 248.2(a)(3))

[4] “COVID-19 exposure” means being within six (6) feet of a COVID-19 case for a cumulative total of 15 or more minutes within a 24-hour period.

Legal Update Memo No. 08-2021(CC) – Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (CCD)

Download pdf: 08-2021(CC) Supplemental Paid Sick Leave for Qualifying Reasons Related to COVID-19 (SB 95) (NLK)

Beginning March 29, 2021, Labor Code section 248.2 requires employers with more than 25 employees to provide Supplemental Paid Sick Leave (“SPSL”) to employees who are unable to work or telework for any of the following Qualifying Reasons (“QR”):

  1. Employee is subject to a COVID-19 quarantine or isolation period as specified in an order or guideline by the California Department of Public Health (“CDPH”), federal Center for Disease Control (“CDC”) or a local health officer with jurisdiction over the workplace.
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Employee is attending an appointment to receive a COVID-19 vaccine.
  4. Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. Employee is caring for a family member[1] who is subject to an order or guidelines described in QR 1 or 2, above.
  7. Employee is caring for a child[2] whose school, place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. (Lab. Code 248.2(b)(1))

LEAVE ALLOTMENT

The number of SPSL hours a “covered employee”[3] is entitled to is based on the number of hours the employee works or is scheduled to work. (Lab. Code 248.2(b)(2))

  • 40-Hour Employees: Up to 80 hours for covered employees who are full time and scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took SPSL leave.
  • Less than 40-Hour Employees: The total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
  • Employees with a Variable Schedule for Six or More Months: 14 times the average number of hours the covered employee worked each day in the six-month period preceding the date the covered employee took SPSL.
  • Employees with a Variable Schedule for More than 14 Days and Less than Six Months: The average number of hours the covered employee worked over the entire period the covered employee has worked for the employer.
  • Employees with a Variable Schedule for 14 or Fewer Days: The total number of hours the covered employee works a variable schedule over a period of 14 or fewer days.

(Lab. C. 248.2(b)(1))

SPSL is in addition to paid leave an employee is entitled to receive under the Healthy Workplaces Healthy Families Act.   (Lab. C. 248.2(b)(2)(D)) 

RIGHT TO IMMEDIATE USE OF SPSL 

Covered employees are entitled to use SPSL immediately upon “oral or written request” before use of other paid or unpaid leave provided by the employer. (Lab. C. 248.2(b)(2)(e) and (4))

When covered employees are excluded from the workplace pursuant to the Title 8 Emergency Temporary Standards due to COVID-19 exposure in the workplace[4], an employer may require covered employees to first exhaust their SPSL to satisfy the employer’s Title 8 obligation to continue compensation and benefits during the exclusion period.  (Lab. C. 248.2(b)(5))

RATE OF COMPENSATION  

Non-Exempt Employees: SPSL must be compensated at the highest of:

  1. The covered employee’s regular rate of pay for the work week the covered employee uses SPSL;
  2. The rate calculated by dividing the covered employee’s total wages, not including overtime, by the employee’s total hours worked in full pay periods of the prior 90 days of employment;
  3. The state minimum wage; or
  4. The local minimum wage to which the covered employee is entitled.

Exempt Employees: The rate calculated in the same manner as the employer calculates other forms of paid leave.  (Lab. Code 248.2(b)(3)(A)) 

MAXIMUM COMPENSATION

Employers are not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee. (Lab. Code 248.2(b)(3)(C))

A covered employee who has reached the maximum compensation under section 248.2 may elect to use other available paid sick to receive full compensation. (Lab. C. 248.2(b)(3)(C)) 

OTHER EMPLOYER-PROVIDED SUPPLEMENTAL BENEFITS

If an employer has paid an employee another supplemental benefit for leave taken after January 1, 2021, for one of the QRs, at a rate at least equal to the rate required under section 248.2, the employer may count the hours of the other supplemental benefits toward the total number of SPSL hours the employer is required to provide.  (Lab. C. 248.2(c))  Some districts and county offices of education have provided such supplemental benefits by policy or memorandum of understanding with exclusive representatives.  If the rate paid was not at least equal to the rate required by section 248.2, see RETROACTIVE APPLICATION, below. 

EFFECTIVE PERIOD/RETROACTIVE APPLICATION OF SECTION 248.2

Section 248.2 goes into effect on March 29, 2021, and is retroactive to January 1, 2021.

If an employer did not compensate an employee who took leave after January 1, 2021, for one of the specified QRs, at a rate at least equal to the rate required by section 248.2, “upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.”  (Lab. C. sec. 248.2(e)(2)(A))  Payment is due “on or before the payday for the next full pay period after the oral or written request of the covered employee.” (Lab. C. 248.2(e)(2)(C))

The number of hours paid retroactively “shall count toward the total hours of [SPSL] that the employer is required to provide [under section 248.2].” (Lab. C. 248.2(e)(2)(B))

Section 248.2 expires on September 30, 2021, “except that a covered employee taking [SPSL] at the time of expiration…shall be permitted to take the full amount of [SPSL] to which the covered employee otherwise would have been entitled.  (Lab. C. sec. 248.2(f)) 

NOTICE TO EMPLOYEES

Employers are required to display a poster in a conspicuous location of employees’ rights to accrue, request, and use paid sick days, the amount of sick days, and the terms of use of paid sick days.  The California Labor Commissioner will make a model notice available on or before March 26, 2021.

For employees who do not frequent the workplace, notice may be given by email.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

 The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2021 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1]Family member” means any of the following:

(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.

(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(3) A spouse.

(4) A registered domestic partner.

(5) A grandparent.

(6) A grandchild.

(7) A sibling.

(Lab. C. 245.5(c),  248.2(b)((1)(F) – Healthy Families Healthy Workplaces Act Definitions)

 

[2] See footnote. 1, paragraph 1.  “Child” is not restricted by age or require that a child over 18 be incapable of self-care.

[3]Covered employee” means an employee who is unable to work or telework for an employer because of one of the QRs.  (Lab. C. 248.2(a)(3))

[4] “COVID-19 exposure” means being within six (6) feet of a COVID-19 case for a cumulative total of 15 or more minutes within a 24-hour period.

Legal Update Memo No. 10-2021 – Classified and Certificated Employees – Notification of Reasonable Assurance of Employment for 2021-2022 (CCD)

Download pdf: 10-2021 Classified and Certificated Employees – Notification of Reasonable Assurance of Employment for 2021-2022 w attachment (SPR)

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code (“Code”) section 1253.3 requires that districts send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

            Letter No. 1 is a sample letter for classified employees who work less than 12 months.

            Letter No. 2 is a sample letter for categorical, special, or federally-funded classified employees who work less than 12 months.

            Letter No. 3 is a sample letter for classified substitutes to be used if the     district has a classified substitute list.

Certificated Employees

It is generally not necessary to send letters of reasonable assurance to regular certificated or administrative employees because they are defined as “professional” employees with either explicit or implied contracts that serve as a reasonable assurance of re-employment.

Substitute Teachers

Substitute teachers, particularly if they are on a list maintained by the district, do not have contracts and we recommend that they also be sent a letter of reasonable assurance no later than 30 days prior to the last day of school.  Each district should send letters to the substitutes on their substitute list and not rely on the county office of education to produce letters of reasonable assurance on its behalf.  If a county office of education also employs certificated substitutes for its own programs, those county offices of education should also send a notice of reasonable assurance to those substitutes.

            Letter No. 4 is a sample letter to be used for substitute teachers who are on a substitute list.

Schools Operating “Year-Round”

Employees working at schools that operate on a year-round basis may be treated differently in terms of qualifying for benefits under Unemployment Insurance Code Section 1253.3.  Substitute teachers and other qualifying school employees may be eligible for unemployment insurance benefits if they do not work during a district’s summer session, and the summer session constitutes a “regular term.”  A “regular term” occurs if the summer session, as a whole, resembles the other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective characteristics.[2]

The California Supreme Court held that “if a school district with conventional fall and spring semesters also offers a two-week summer session with limited offerings and limited enrollment, the summer session would not be a ‘regular’ term. By contrast, if a school district offers a summer session that resembles the fall and spring semesters in terms of enrollment, staffing, budget, and the instructional program offered, then the summer session would qualify as a ‘regular’ term.” Id.  If an employee files a claim for unemployment insurance benefits during the summer session, the district should be prepared to demonstrate that these factors differ between spring and summer terms.

If you question whether your district’s summer term meets the court’s description of a “regular term,” it is recommended that you issue the letter of reasonable assurance to qualified employees as a precaution.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district should be prepared to produce a copy of the letter of reasonable assurance given to that employee.  We recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between school terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance.  For instance, if a summer layoff results in a reduction to a part-time position, the individual may be eligible for unemployment benefits.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2021 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

[2] United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805.

Legal Update Memo No. 07-2021(CC) – Classified Employees – Notification of Reasonable Assurance of Employment for 2021-2022 (CCD)

Download pdf: 07-2021(CC) Classified Employees-Notification of Reasonable Assurance of Employment for 2021-2022 w attachment (SPR)

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code (“Code”) section 1253.3 requires that districts send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

            Letter No. 1 is a sample letter for classified employees who work less than 12 months.

            Letter No. 2 is a sample letter for categorical, special, or federally-funded classified employees who work less than 12 months.

            Letter No. 3 is a sample letter for classified substitutes to be used if the college district has a classified substitute list.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district should produce a copy of the letter of reasonable

assurance that was given to that employee.  For this reason we recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Community College Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between academic terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance. For instance, if the likely number of days a regular substitute is likely to work decreases by more than 20%, that substitute may be eligible for unemployment benefits for the summer.

Schools Operating “Year-Round”

The California Supreme Court held that under Unemployment Insurance Code Section 1253.3, K-12 substitute teachers and other qualifying school employees may be eligible for unemployment benefits if they do not work during a district’s summer session, and, the summer session constitutes a “regular term.” As defined by the Court, a regular term occurs “if the summer session, as a whole, resembles the other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective characteristics.”[2]

The Court clarified that “if a school district with conventional fall and spring semesters also offers a two-week summer session with limited offerings and limited enrollment, the summer session would not be a ‘regular’ term. By contrast, if a district offers a summer session that resembles the fall and spring semesters in terms of enrollment, staffing, budget, and the instructional program offered, then the summer session would qualify as a ‘regular’ term.” Id.  While this ruling was directed at K-12 school districts, if a classified community college employee is not employed during the summer and files a claim for unemployment benefits with EDD, the district should be prepared to provide EDD with data related to the difference in enrollment, staffing, budget, and instructional programs offered between spring and summer sessions to demonstrate that the summer session is not a “regular term” as outlined by the Court.

If you question whether your district’s summer session meets the Court’s description of a “regular term,” it is recommended that you issue the letter of reasonable assurance as a precaution.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

[2] United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805.

Legal Update Memo No. 09-2021 – AB 86: California’s Final Reopening Plan (K-12)

Download pdf: 09-2021 AB 86 California’s Final Reopening Plan (JH)

Governor Newsom and the California Legislature reached a deal on a final school reopening plan, laid out in Assembly Bill (“AB”) 86.[1] The Governor signed it into law on March 5, 2021, and it is now in effect.

I. $4.5 Billion Learning Recovery Funding

The Legislature’s proposal provides for $4.5 billion apportioned to Local Educational Agencies (“LEAs”) through the Local Control Funding Formula (“LCFF”), with an additional $1,000 per homeless student. (Education Code section 43521. Please note that all further references to code sections pertain to the Education Code.)

As a condition of receiving these funds, LEAs must implement a learning recovery program to provide supplemental instruction and support for high-need pupils, including meals and snacks. (Section 43522.) High-need pupils include those with exceptional needs, those eligible for free/reduced price meals, English learners, foster youth, homeless pupils, at-risk students, disengaged pupils, pupils who are below grade level, credit-deficient pupils, and high school pupils at risk of not graduating.

At least 85% of the funds shall be expended to provide extended instructional learning time, and provide additional support such as tutoring, accelerated learning programs, technology hubs, and health and wellness services. Of that 85%, at least 10% must be used to hire paraprofessionals to provide individualized instruction to exceptional needs students and English learners. Up to 15% may be used for distance learning or to prepare for in-person instruction. (Section 43522.)

II. $2 Billion Reopening Incentive Grants

The Legislature’s proposal, which is based on the LCFF formula, provides for $2 billion in incentive grants for LEAs to return to in-person instruction on or before April 1. This apportionment is reduced by 1% for every instructional day after April 1 that an LEA does not return to in-person instruction.[2] An LEA that does not return to in-person instruction by May 15 forfeits all funds. Once an LEA reopens for in-person instruction, it must stay open unless ordered to close by state or local health officer. (Section 43521.)

Purple Tier: For LEAs in the purple tier not eligible to open, the LEA must offer Cohort in-person instruction to all pupils with exceptional needs and to all Prioritized Pupils,[3] up to the maximum practical capacity. For elementary schools in the purple tier, the school must offer in-person instruction to all pupils in K-2, and to exceptional needs pupils and Prioritized Pupils. Once a purple tier elementary school moves to red tier, it must reopen to its highest elementary school grade. LEAs in the purple tier must conduct asymptomatic testing for staff and students per the state guidance for schools.[4] LEAs in the purple tier would not have to adopt the testing cadences if they reopen by March 31, or their board adopts a plan to reopen and they post their COVID-19 Safety Plan on their website. (See Safety Plan definition below.) Once an LEA moves out of the purple tier, it does not have to maintain the testing cadence.

Elementary (K-6): Elementary schools not in the purple tier must offer in-person instruction to all pupils in all grade levels, and to exceptional needs pupils and Prioritized Pupils.

Middle/High (6-12): Middle and high schools must offer in-person instruction in at least one full grade level, and to exceptional needs pupils and Prioritized Pupils.

These funds may be used for in-person instruction services and supplies, including COVID-19 testing, cleaning, personal protective equipment, ventilation, salaries for certificated or classified employees providing in-person instruction or services, and social and mental health support services. All LEAs must certify compliance with the reopening criteria by June 1, on a form the State Department of Education will post by May 1. All LEAs shall continue to comply with the distance learning and instructional time requirements of SB 98.

I. Other Key Points of the Legislature’s Proposal 

  • “In-Person Instruction” Definition: “Instruction under the immediately physical supervision and control of a certificated employee.” It may also include “hybrid” models that are open fewer than five days per week if the LEA is offering in-person instruction to the greatest extent possible. (Section 43520.5(f).) Reopening is not contingent on school staff receiving the COVID-19 vaccination.
  • COVID-19 Safety Plan: Requires LEAs offering in-person instruction to post a completed COVID-19 safety plan[5] on its website at least five days before reopening. (Section 32091.) LEAs in the purple tier must also submit their Safety Plan to the local health department and the California Department of Public Health (“CDPH”) for review, and fix any deficiencies identified by the county or state health department.
  • Requires LEAs to report a student or employee’s positive COVID-19 test to the local health officer within 24 hours, if the student or employee was on campus while infectious. (Section 32090.)
  • Requires LEAs to notify the State, beginning March 15, 2021, twice per month how many students are enrolled and attending school in-person, virtually, and by hybrid method, or the reasons why in-person instruction is not being offered. (Section 32090.)
  • Requires the State Government Operations Agency to prioritize a portion of COVID-19 vaccines for Tier 1B (education sector). (Section 32090.)
  • $25 million appropriated from the General Fund to the State for a Safe Schools for All Team to coordinate pandemic health and safety in schools. (Section 32090.) $5 million appropriated from the General Fund to the State Superintendent of Public Instruction to provide support to LEAs to maximize pupil outcomes. (Section 32090.)

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2021 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB86

[2] Note, based on the individual LEAs instructional calendar, an LEA may return to in-person instruction after April 1, if there were no instructional days between April 1 the first day of in-person instruction.

[3] Prioritized Pupils is defined to include: pupils at risk for abuse, neglect, or exploitation; homeless pupils; foster youth; English learners; pupils without online access; and disengaged pupils.

[4] https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Consolidated_Schools_Guidance.pdf

[5] The Safety Plan has two parts: 1. The LEA’s COVID-19 Prevention Program (“CPP”) required by Cal/OSHA Emergency Temporary Standards (See our Cal/OSHA Legal Update – Addendum to Legal Update Memo No. 72-2020 https://sclscal.org/addendum-legal-update-memo-no-72-2020-cal-osha-issues-emergency-covid-19-regulations-for-all-employers-k-12/), and including description of any planned testing cadences for staff and pupils; and 2. The COVID-19 School Guidance Checklist, a CDPH form to complete regarding the LEA’s plans to comply with the new public health requirements. (CDPH CSP Checklist: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/COVID19_School_Guidance_Checklist.pdf.) (Section 32090.)

Legal Update Memo No. 06-2021(CC) – Post-Spring Break Quarantine – Travel Advisory Updates (CCD)

Download pdf: 06-2021 Post-Spring Break Quarantine – Travel Advisory Updates (JH)

This Legal Update updates and replaces our November 17, 2020 Legal Update Memo No. 34-2020(CC) – REVISED regarding Public Health Issues Out of State Travel Advisory and FFCRA Implications.

On January 6, 2021, the California Department of Public Health (“CDPH”) issued an updated travel advisory[1] recommending the following restrictions for those who engaged in non-essential travel, defined as travel that is considered tourism or recreational in nature:

  1. “Persons arriving in California from other states or countries, including returning California residents, should self-quarantine for 10 days after arrival….” and[2]
  1. “Except in connection with essential travel, Californians should avoid non-essential travel to any part of California more than 120 miles from one’s place of residence, or to other states or countries.”[3]

This advisory was released due to the increasing rate of spread of COVID-19 in many states and countries, including new strains of the virus.  We recommend that clients anticipating or planning to reopen for in-person instruction around Spring Break review this advisory, as employees and students may travel over this period.  More information on travel restrictions, including a Q&A can be found at: https://covid19.ca.gov/travel/.

While the language is not mandatory, we believe that a district could cite to the advisory to establish a rule, after negotiating with applicable bargaining units, restricting employees who engage in such travel to either work from home, if the district has work to offer, or to take a leave of absence for ten (10) calendar days. Employees should have advance notice of the rule, should the district wish to establish one. 

Whether and how employees would be paid for such an enforced leave is an item which must be negotiated. It would depend first on applicable provisions of the District’s collective bargaining agreement or any applicable Memorandum of Understanding, then on past practice, and lastly on Board Policy or an agreement reached through subsequent negotiation. We recommend meeting with labor partners quickly to establish such a rule prior to Spring Break, and addressing any negotiable impacts of such a rule, if the district wishes to establish a rule on this issue.

Expiration of Family First Coronavirus Response Act (“FFCRA”)

Congress did not renew the mandated emergency paid sick leave or expanded Family and Medical Leave Act leave, which expired on December 31, 2020, so employers are no longer required to provide such leave under the FFCRA.  However, Congress did provide in the 2021 Consolidated Appropriations Act that employers that voluntarily provide paid leave as though the FFCRA had been extended will continue to receive full reimbursement from the federal government through tax credits and/or refunds through March 31, 2021.

Requiring Testing Prior to Return

Finally, a reminder that the Americans with Disability Act and the Equal Employment Opportunity Commission permit employers to require testing of an employee at the employer’s expense if the employer has a reasonable belief based on objective evidence that this person might have the disease.[4]  In addition, there is pending budget legislation that would tie a district’s receipt of reopening incentive grants to adopting a testing cadence.  Last, any school currently open is subject to the minimum testing requirement standards established by Cal/OSHA, which include offering “response” testing (on site or through a third party) for employees exposed at work, and outbreak testing for everyone weekly until no longer considered an outbreak. (See https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#testing.)

Please contact our office with questions regarding this Legal Update or any other legal matter. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2021 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes. 

[1] Available at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Travel-Advisory.aspx.

[2] This recommendation does not apply to individuals who cross state or country borders for essential travel, defined as “work and study, critical infrastructure support, economic services and supply chains, health, immediate medical care, and safety and security.”

[3] The CDPH Travel Advisory from November 2020 recommended a 14-day self-quarantine and discouraged non-essential travel outside a Californian’s home, especially to another state or country.

[4] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, FAQ A.9 (last visited on March 2, 2021).

Legal Update Memo No. 08-2021 – Post-Spring Break Quarantine – Travel Advisory Updates (K-12)

Download pdf: 08-2021 Post-Spring Break Quarantine – Travel Advisory Updates (JH)

This Legal Update updates and replaces our November 17, 2020 Legal Update Memo No. 69-2020 – REVISED regarding Public Health Issues Out of State Travel Advisory and FFCRA Implications.

On January 6, 2021, the California Department of Public Health (“CDPH”) issued an updated travel advisory[1] recommending the following restrictions for those who engaged in non-essential travel, defined as travel that is considered tourism or recreational in nature:

  1. “Persons arriving in California from other states or countries, including returning California residents, should self-quarantine for 10 days after arrival….” and[2]
  1. “Except in connection with essential travel, Californians should avoid non-essential travel to any part of California more than 120 miles from one’s place of residence, or to other states or countries.”[3]

This advisory was released due to the increasing rate of spread of COVID-19 in many states and countries, including new strains of the virus.  We recommend that clients anticipating or planning to reopen for in-person instruction around Spring Break review this advisory, as employees and students may travel over this period.  More information on travel restrictions, including a Q&A can be found at: https://covid19.ca.gov/travel/.

While the language is not mandatory, we believe that a district could cite to the advisory to establish a rule, after negotiating with applicable bargaining units, restricting employees who engage in such travel to either work from home, if the district has work to offer, or to take a leave of absence for ten (10) calendar days. Employees should have advance notice of the rule, should the district wish to establish one. 

Whether and how employees would be paid for such an enforced leave is an item which must be negotiated. It would depend first on applicable provisions of the District’s collective bargaining agreement or any applicable Memorandum of Understanding, then on past practice, and lastly on Board Policy or an agreement reached through subsequent negotiation. We recommend meeting with labor partners quickly to establish such a rule prior to Spring Break, and addressing any negotiable impacts of such a rule, if the district wishes to establish a rule on this issue.

Expiration of Family First Coronavirus Response Act (“FFCRA”)

Congress did not renew the mandated emergency paid sick leave or expanded Family and Medical Leave Act leave, which expired on December 31, 2020, so employers are no longer required to provide such leave under the FFCRA.  However, Congress did provide in the 2021 Consolidated Appropriations Act that employers that voluntarily provide paid leave as though the FFCRA had been extended will continue to receive full reimbursement from the federal government through tax credits and/or refunds through March 31, 2021.

Requiring Testing Prior to Return

Finally, a reminder that the Americans with Disability Act and the Equal Employment Opportunity Commission permit employers to require testing of an employee at the employer’s expense if the employer has a reasonable belief based on objective evidence that this person might have the disease.[4]  In addition, there is pending budget legislation that would tie a district’s receipt of reopening incentive grants to adopting a testing cadence.  Last, any school currently open is subject to the minimum testing requirement standards established by Cal/OSHA, which include offering “response” testing (on site or through a third party) for employees exposed at work, and outbreak testing for everyone weekly until no longer considered an outbreak. (See https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#testing.)

Please contact our office with questions regarding this Legal Update or any other legal matter. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2021 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes. 

[1] Available at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Travel-Advisory.aspx.

[2] This recommendation does not apply to individuals who cross state or country borders for essential travel, defined as “work and study, critical infrastructure support, economic services and supply chains, health, immediate medical care, and safety and security.”

[3] The CDPH Travel Advisory from November 2020 recommended a 14-day self-quarantine and discouraged non-essential travel outside a Californian’s home, especially to another state or country.

[4] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, FAQ A.9 (last visited on March 2, 2021).