This back-to-school season is like no other and it is certainly raising a lot of questions for employers and employees alike. As parents attempt to navigate the uncharted waters of balancing work obligations against a mix of remote, hybrid and in-person learning, the Department of Labor (DOL) Wage and Hour Division updated its Guidance on August 27, 2020 and added FAQs directly addressing the reopening of schools and which workers may be eligible for paid leave under the Families First Coronavirus Response Act (FFCRA). As many are aware, the FFCRA may provide employees with both emergency paid sick leave (up to two weeks) and up to 12 weeks of expanded family and medical leave (10 of which are paid) if an employee needs to “care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons”. However, because the definition of what constitutes whether a school is effectively “closed” is somewhat unclear, the DOL has attempted to provide some clarity.
Workers With Children in Hybrid Schools
For employees with children who attend schools operating on an alternative day or hybrid attendance schedule, such employees are permitted to take paid leave under the FFCRA on the remote learning days when their children are not permitted to attend school in person and must engage in remote learning. An employee is eligible to take this leave as long as the time is actually used to care for the child and only if no other suitable person is available to do so. For the purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to the employee’s child on the days the child cannot attend.
Workers Who Have Chosen Remote Learning Over In-Person Learning
If a school is providing in-person learning, but parents have a choice based on COVID-19 concerns, and a parent chooses a remote learning alternative based on those concerns, the parent-employee is not eligible to take paid leave under the FFCRA. Under this scenario, the school is not effectively “closed” for COVID-19 reasons and it is possible for the child to attend school in person. FFCRA leave is not available to employees seeking to stay home to take care of children whose school is open for in-person attendance. However, if a child is home under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child.
Workers With Children In Schools Starting Remote But Revisiting In-Person Learning
In cases where an employee has a child in a school that is beginning with a remote schedule based on COVID-19 concerns, the employee is able to take paid leave under FFCRA while the school remains closed. If the school is reevaluated and later chooses to reopen and return to in-person learning, the availability of FFCRA leave will depend on the particulars of the school’s operations.
If an employee already exhausted the employee’s available FFCRA leave at the end of the prior school year, the employee is not entitled to additional leave merely because a new school year is beginning. Lastly, employers should note that the obligation to provide FFCRA leave remains in effect until December 31, 2020, unless extended by Congress. Any replenishment of time for the upcoming school year would need to be addressed legislatively.
This area should be closely monitored for legal updates.
Please note that state legislation and legal guidance may vary in protections from the federal legislation and legal guidance cited above. This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.