States Mandate Unpaid Leave for School Activities

​Now that schools are back in session for the fall, employees may find themselves in need of time off to attend school events or meetings for their children.

Ten states (California, Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island and Vermont) and Washington, D.C., require employers to provide time off for parents to attend their children's school activities. Most of the states with school-related leave allow it to be unpaid, but some stipulate that workers can use their paid vacation days or other paid time off.

"I can't stress enough how important it is for employers to be aware of the laws that apply in all of the states or jurisdictions where they operate. School-related leave is one issue, but many states require that certain policies be provided to employees and that state-specific posters be available," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. "With our increasingly mobile and remote workforce, it is very easy for a well-meaning employer to find that it is noncompliant."

The types of covered activities vary by state, but they may include disciplinary meetings, classroom volunteering, parent-teacher conferences, and special education meetings for a child with an individualized education program (IEP).

For example, the Illinois law provides eight hours of unpaid leave per school year for employees to attend school conferences, academic meetings or behavioral meetings when such activities cannot be rescheduled during nonwork hours. It applies to employers with 50 or more workers.

In California, the law applies to employers with 25 or more employees. It provides 40 hours of unpaid leave per school year for workers to attend the following activities:

• To find, enroll or re-enroll their child in a school or a licensed child care provider.
• To participate in activities of the school or child care provider.
• To address a school or child care provider emergency.
• To meet with school officials regarding a suspension or other disciplinary action.
  

If possible, California employees must use accrued vacation days, personal leave or comp time, unless that would conflict with the terms of a collective bargaining agreement. The law prohibits employers from firing or discriminating against an employee for taking school-related leave.

"Having a more flexible paid-time-off policy that allows all employees to choose at their discretion how to use their available paid time off or other leave benefits may boost morale," said Tiffany Hendricks, an attorney with Akerman in Fort Lauderdale, Fla. "For employers with employees in states that permit an employee to use paid sick or family types of leave for school-related activities, having a comprehensive paid-time-off benefit that applies to all employees and expressly provides for a wide range of school-related activities may score an A+."

Some states require employees to provide advance notice to their employer when possible. In some cases, the employer can require the worker to submit documentation verifying the need for the school-related leave.

The states vary on how to define "parent" for the purposes of school-related leave. California grants the leave to parents, guardians, stepparents, foster parents, grandparents and those who stand in loco parentis (in the place of a parent). North Carolina's law applies only to parents, guardians and those who stand in loco parentis.

Employers have to weigh the costs and administrative complexity when choosing whether to have a state-specific approach to time off or a companywide approach.

"Some employers find it easier to offer the same leave to all employees, thus cutting down on the administrative burden of determining who is entitled to the leave, how to code the time off, and handbook addendums," said Jenifer Bologna, an attorney with Jackson Lewis in White Plains, N.Y. "Other employers prefer to provide leave based on the statutory obligations in the location where the employee works. Taking this approach could result in some employees receiving significantly more leave than other employees."

Hendricks said multistate employers "need to evaluate what works best to strike the right balance between efficiency, consistency, employee morale and legal compliance. Most importantly, employers need to keep on top of the ever-evolving school-related activities leave laws, paying close attention to coverage and eligibility thresholds in the states where they operate."

There's no national law granting time off for general school-related activities, but the Family and Medical Leave Act does give parents the right to take intermittent leave to attend IEP meetings for their child who has a serious health condition, according to a U.S. Department of Labor opinion letter.

"Employers should be mindful of the interplay of [school-related] leave and state or local paid sick or family leave laws and make sure their policies are sufficiently flexible for this purpose," Hendricks said.

Clear communication is key. "Employers should consider distributing written policies describing the benefit, employee eligibility and the process by which employees may request such leave," said Linda Hollinshead, an attorney with Duane Morris in Philadelphia. "Employers should consider whether they are able to use existing paid-time-off benefit programs to meet their obligation under the school activities leave law, or run such paid time off concurrently, in which case, written updates to such paid-time-off policies should be distributed. Employers must also comply with explicit record-keeping requirements, which typically require an employer to track employee hours worked, leave accrual, and usage and leave balances."

Looking Ahead

It's likely that more states will pass laws granting school-related leave, according to Shea and Hendricks. "We expect to see an expansion of existing state paid sick and family leave laws to cover paid leave for school-related activities," Hendricks said. "We also expect that states may expand existing school-related activities leave laws to cover a broader base of activities, such as school volunteering, school emergencies, school enrollment and other school-related events."