Uncertainty abounds with the reopening of schools for in-person learning. Many schools will likely continue, at least for the foreseeable future, with distance learning. This means working parents with school-aged children, and their employers, must comply with the expanded Family and Medical Leave Act obligations set forth in the Families First Coronavirus Response Act (FFCRA). Employers with less than 50 employees normally would not be subject to the FMLA. Under the FFCRA, employers with less than 500 employees, even those who would not otherwise be subject to the FMLA, are now obligated to provide up to 12 weeks of leave, the majority of which is paid, to eligible employees in the event of school or daycare closures. After 10 days of unpaid leave, during which employees may use accrued personal or sick leave, the employer must pay the affected employee no less than two-thirds of their usual pay—up to $200 per day, and up to $10,000 in total. Each quarter, employers subject to the requirement are entitled to a fully refundable tax credit equal to 100 percent of the qualified paid Family and Medical Leave Act (FMLA) wages paid by the employer.
The FFCRA only applies if an employee cannot work from home. Many employees may have exhausted the available 12 weeks of FFCRA leave to care for a child before the 2020/2021 school year starts. However, if employees have any remaining leave under the FFCRA, they may use it if their child’s school remains closed (or partially closed) to in-person learning in the fall.
Keep in mind that an employee’s ability to use FFCRA leave last spring is not determinative as to whether the employee can use FFCRA leave this fall. For example, an employee may be able to use leave under the FFCRA in the coming months, even if the employee was able to work (in person or remotely) when schools were closed last spring. An employer should not assume that the same schedule/arrangement would work for an employee moving forward. Circumstances may change, including employees realizing they are not able to effectively provide childcare and work remotely at the same time. Parents may also conclude that because remote learning may be here to stay indefinitely, they need to devote more time and attention to it this fall. Similarly, some employees may need to use leave because a co-parent, who may have used FFCRA leave in the spring to care for the child, has now exhausted the maximum 12 weeks of leave.
The DOL has also clarified that if a childcare provider or school is open to some students, but not to the employee’s student (due to capacity or other COVID-related limitations), the school or childcare provider is still considered “closed” to that student who is unable to attend. This means that employees may be eligible to use FFCRA leave when needed to care for children at home due to a “hybrid” model under which students physically go to school a few days each week and attend virtual school the other days.
The DOL has not expressly addressed an employee’s eligibility for FFCRA leave where the employee has selected a virtual option as opposed to physically returning his or her child to school, but based on the statute’s language, it appears that this employee would not be eligible for leave under the FFCRA because they had the option for their child to return to school in person. In that case, the school would not be closed to the child due to a COVID-19–related reason. Note, however, that if an employer knows that an employee elected a virtual option due to the child’s underlying health condition, the employer may want to follow its typical process to determine if the circumstances may be covered by the traditional Family and Medical Leave Act (or the Emergency Paid Sick Leave Act if the child is subject to a quarantine order from the government or health care provider).
This is an evolving situation. Clear communication between employers and employees will assist as will flexibility. The lawyers at Faulkner Law Offices, PLLC can help you maneuver these complex issues.