School’s in session: New FFCRA FAQs address return to school leave issues

Just in time for the first bell, the Department of Labor (DOL) has issued new frequently asked questions (FAQ) to help employers and working parents understand how the Families First Coronavirus Response Act (FFCRA) applies to the various return to school formats and schedules that school districts are implementing.

As a brief refresher, the FFCRA has two components that each provide for certain leave time because of an employee’s need to care for a “son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”

• Emergency Paid Sick Leave - Eligible employees may take up to 80 hours of sick leave for covered COVID-19 related child care reasons. This child care leave time is paid at two-thirds of the employee’s regular rate up to $200 per day.
• Expanded Family Medical Leave - Eligible employees may take up to 12 weeks of expanded family and medical leave for covered COVID-19 related child care reasons. The first two weeks of the leave are unpaid and the remaining 10 weeks are paid at two-thirds of an employee’s regular rate up to $200 per day. An employee may use the EPSL paid leave to cover the unpaid portion of the EFML leave.

Months ago when the FFCRA was passed, no one envisioned that working parents and employers would be dealing with so many varied return to school arrangements or that determining whether a school is “closed” would be so difficult. While the DOL has previously stated that “closed” covers remote learning, as we now know, remote learning is not “one size fits all.” The FFCRA does not precisely fit the new reality of hybrid scheduling and optional return to classroom learning. As a result, the DOL’s new FAQs come in response to requests from employers and working parents seeking to clarify how the FFCRA leave requirements apply to these varied situations.

The DOL’s guidance on three new return to school situations is summarized below.

• Hybrid scheduling - In FAQ 98, the DOL addresses hybrid scheduling situations where a school is open each day, but students alternate between attending in person and participating in remote learning. In the hybrid scheduling situation, the DOL states that employees are eligible to take FFCRA leave on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning. FFCRA leave is available as long as the employee needs the leave to actually care for their child during that time and only if no other suitable person is available to do so.

  The DOL notes that for purposes of the FFCRA, the school is effectively “closed” on days that the child cannot attend in person. An employee may take paid leave under the FFCRA on each of the child’s remote-learning days, but not on days when the child is actually at school.

• Choice of in-person school or remote learning - In FAQ 99, the DOL addresses the situation where a parent may choose between having their child attend school in person or participate in a remote learning program for the fall.
  • The DOL states that where a parent has the option and chooses remote learning the employee is not eligible to take paid leave under the FFCRA because the child’s school is not “closed” due to COVID–19 related reasons. Rather, the school is open for the child to attend, but the parent has selected a different option. Simply put, FFCRA leave is not available to take care of a child whose school is open for in-person attendance.
  • The DOL notes that in this situation the child is learning remotely because the parent has chosen for the child to remain home, not because the school is closed. As a result, the parent is not entitled to FFCRA paid leave.
  • However, if, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the parent may be eligible to take paid leave to care for of the child.
• Remote learning to start school year - Finally, the FAQs address whether an employee is eligible for leave when the school year starts under a remote learning program due to COVID-19, but the school district is continuing to evaluate the circumstances and may decide to reopen for in-person attendance later in the school year.  In this situation, the employee is eligible to take FFCRA leave while the child’s school remains closed. If the school reopens, the availability of FFCRA leave will depend on the particulars of the school’s operations.

Unfortunately, the DOL’s new guidance leaves employers and working parents with situations that will continue to be frustrating and difficult to manage. The alternating use of FFCRA leave in the hybrid scheduling model will undoubtedly create scheduling and staffing headaches for employers. On the other hand, employees who do not feel safe having their children return to school may have little choice if their child’s school is open.

As this unprecedented situation continues to unfold, employers and working parents will need to remain flexible and open to alternative work arrangements that they may not have considered in the past. While many things about the new school year are uncertain, one thing is certain: employers and working parents will both be learning how to manage these circumstances.

The McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide updates on the FFCRA and other employment issues impacted by the COVID-19 crisis.