COVID-19 Paid Leave Law: FAQ
The COVID-19 paid leave law has raised both legal and practical questions for school administrators. The most pressing questions about the implications of the law and implementation are addressed below. To further assist with following the mandates of the law, we have prepared a model form that schools can use when receiving and processing requests from employees for paid leave, including reinstatement of sick days, under the law. For additional information about the form, and for assistance with implementing the Act’s requirements, please contact the authors of this FAQ or any Franczek attorney.
1. Who is eligible for paid administrative leave under the Act?
- An employee:
- who is employed by the school on or after the effective date of the Act (April 5, 2022); and
- who is fully vaccinated or who becomes fully vaccinated within 5 weeks of the effective date of the Act; and
- who is participating in any applicable school testing program required for fully vaccinated employees.
2. How is “fully vaccinated against COVID-19” defined by the Act?
- The Act defines “fully vaccinated against COVID-19″ as two weeks after receiving either the second dose in a two-dose series of a COVID-19 vaccine or a single dose of a COVID- 19 vaccine in a one-dose series.
- Currently, a booster dose is not required to be considered “fully vaccinated” under the Act. If the IDPH adopts an updated definition of “fully vaccinated” to include any recommended booster doses, an un-boosted employee must have the booster shot within 5 weeks from the date of the change of definition to be eligible for future COVID paid administrative leave.
3. When are employees eligible for paid administrative leave if excluded from work?
- When the employee:
- Tests positive for COVID-19 (PCR or rapid test); or
- Is a close contact with a confirmed case; or
- Is excluded from school due to COVID symptoms by the school or school policy; or
- Has a child excluded from elementary or secondary school for any of the reasons listed above.
4. Are employees eligible for leave if their child is excluded from day care related to COVID-19?
- No. The Act states that leave is only available when an employee’s child is unable to attend elementary or secondary school because of a positive COVID case, a probable COVID case, close contact or other exclusion from school related to COVID.
5. Under what circumstances is an employee eligible for reinstatement of their sick days for COVID-19 related leave taken prior to the Act’s effective date?
- Any sick leave used by an employee during the 2021-2022 school year must be returned to the employee if 1) the employee is fully vaccinated or receives all required doses to meet the definition of “fully vaccinated against COVID-19″ no later than five weeks after the Act’s effective date, and 2) the sick leave was taken due to the employee or the employee’s child being restricted from being at school because they tested positive for COVID-19, were symptomatic, or were a close contact of someone who was positive for COVID-19.
6. Do we have to reimburse for unpaid leave taken prior to the 2021-2022 school year?
- Possibly. While a school is only required to reinstate sick days for eligible leave taken during the 2021-2022 school year, an employee may be eligible for reimbursement for required unpaid leave (starting with the Governor’s declaration on March 9, 2020), if the absence was due to the employee or their child being restricted from school due to COVID-19 and the employee is “fully vaccinated,” or becomes fully vaccinated within five weeks of the Act’s effective date.
7. How do we handle employee requests for reimbursement of sick leave or paid administrative leave related to the employee or their child having experienced symptoms of COVID-19?
- The Act requires the school to grant an employee paid administrative leave whenever the exclusion is required by the school or school policy. When handling such requests, refer to the school policy in place at the time the leave was taken. This is likely to require a nuanced case by case determination.
8. How much paid administrative leave must a school provide?
- There is no limit provided the reasons for the leave meet the requirements of the Act.
9. How does an MOU with a union which granted paid administrative leave for COVID-related absences impact an employee’s rights to receive reinstatement of sick days or paid administrative leave?
- If the days under the MOU were already categorized as paid administrative leave, no additional benefits are granted by the Act. If the MOU granted additional “sick leave” days related to COVID-19, it is unlikely the employee is entitled to reimbursement of such days. Please check the language in your MOU or contact a Franczek attorney for further review.
10. How will any changes made to the definition of “fully vaccinated” affect an employee’s eligibility for future paid leave?
- If the IDPH revises the definition of “fully vaccinated” to include a booster, then the updated definition will apply to any employee seeking paid administrative leave under the Act once five weeks has passed following the IDPH’s adoption of the revised definition.
11. If the definition of “fully vaccinated” changes to include a booster dose, will that affect an employee’s eligibility to be reimbursed for past leave?
- No. If IDPH revises the definition of “fully vaccinated” to include a booster, the updated definition would not apply to an employee requesting to be reimbursed for past leave or to have sick days reinstated.
12. Are employees eligible for paid leave under the Act due to “Long COVID” or other COVID-19 related reasons even if they or their child are not restricted from being on school property?
- No. Employees are entitled to receive paid administrative leave, including the reinstatement of sick leave, only for the period of time that exclusion from school is required by the school or school policy.
13. Are employees with religious or medical exemptions to being vaccinated eligible for paid leave under the Act, including reinstatement of sick days?
- Likely yes. While not explicitly set forth in the Act, employers may not treat employees differently based on a sincerely held religious belief or practice or fail to provide a reasonable accommodation for a disability absent an undue hardship. If you need assistance processing exemption requests, please contact a Franczek attorney.
14. Are employees who are no longer employed with the school eligible for reimbursement or reinstatement of sick days under the Act?
- No. Only individuals employed by the school on or after the effective date of the Act are eligible.
15. Can we require an employee to submit documentation demonstrating eligibility for such leave?
- Yes. We have developed a model form that schools may use for employees requesting paid administrative leave or reinstatement of sick days under the Act, which requires an employee to submit supporting documentation. For additional information about the form, contact any of the authors of this FAQ.