Issue of the Month: Paid Parental Leave - What You Need to Know

On June 26, 2023, the paid parental leave (PPL) law (PPL Law) applying to public school districts in South Carolina went into effect. The law, codified as S.C. Code Ann. 8-11-151 and 8-11-156, largely mirrors the PPL statute previously enacted in October 2022 with regard to South Carolina state employees. The PPL Law provides an exponential increase in the availability of paid leave for eligible employees who give birth, adopt a child, or foster a child on or after June 26, 2023.

Prior to June 26, district employees who gave birth, adopted a child, or fostered a child, were required to use accrued paid leave, and/or apply for use of unpaid leave pursuant to the Family Medical Leave Act (FMLA). As of June 26, eligible district employees are now permitted up to six (6) weeks of PPL for a qualifying event. A qualifying event is described as the birth of a newborn, biological child, an initial placement of a foster child in state custody, or the adoption of a child.

Not all of your employees will be eligible for PPL. The PPL Law defines an eligible employee as an “employee defined by the Department of Education using the Professional Certified Staff system or any full-time equivalent position categorized as classified staff. Any employee who is full-time or occupies a full-time position is eligible for PPL. However, depending on how your district organizes its employees, part time certified employees may also qualify for PPL.

An eligible employee is entitled to, without regard to his or her other accrued leave or qualification for FMLA, up to six (6) weeks of paid leave. In determining the amount of leave that the eligible employee is entitled to, we look at the type of qualifying event. An eligible employee who gives birth to a biological child or adopts a child, and is the primary caregiver, is entitled to six (6) weeks of paid leave. An eligible employee whose co-parent gives birth to a biological child, or a co-parent of a newly adopted child is entitled to two (2) weeks. An eligible employee is also entitled to two (2) weeks of PPL after the initial placement of a foster child. If both parents of the child are eligible employees employed in the same district, the eligible employees may choose to take their leave concurrently, consecutively, or in different non-consecutive periods. Once leave has commenced, however, the eligible employee must exhaust all of his or her entitled leave consecutively. The only exception is for an eligible employee whose qualifying event is the initial placement of a foster child. In this scenario, the eligible employee may elect to take his or her entitled leave in two (2) one-week periods.

With regard to other forms of leave, PPL must run concurrently with FMLA and any other unpaid leave to which the eligible employee may be entitled. However, an eligible employee shall be eligible for PPL even if the employee has exhausted their FMLA leave or is not eligible for FMLA coverage for some other reason at the time of the qualifying event. If an eligible employee becomes eligible for FMLA while on PPL, the employee must use FMLA leave, and the remaining PPL would run concurrently.

By and large, for better or worse, newly enacted laws often leave room for interpretation, and the PPL law is no different. The PPL Law expressly outlines that districts may enact policies to dictate how certain portions of the law are implemented. Specifically, the PPL Law states that districts may permit eligible employees to utilize the PPL in a subsequent contractual term. In other words, a district can elect to allow an employee to take a portion of his or her PPL in May 2023, and the remainder when he or she returns in August for the 2023-2024 school year. On the other hand, a district may enact a policy that requires exhaustion of PPL within a single contractual period. Either option is permissible, but remember—what you do for one, you must do for all.  

Moreover, while holidays and vacation days listed on the District calendar may not be counted against PPL leave, a district's summer break is not considered to be a school holiday. As more districts turn to modified year round calendars, the Dept of Ed's position is that the default for a modified year-round school district is that the weeks taken during the years in lieu of a full summer break are counted toward the balance of PPL. However, the District can adopt a policy to circumvent or prevent that.

  If you have any questions regarding the PPL Law or creating a policy in accordance with the same, please do not hesitate to contact White & Story.

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