Amidst an ongoing pandemic, school districts across the country are beginning to implement reopening plans for a new school year. With these reopening plans varying – sometimes significantly – among school districts, many employers are uncertain of their obligations to provide leave to employees with school-age children.

Enacted in March 2020, the Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide paid leave for various COVID-19 related reasons. Among other qualifying reasons, the FFCRA requires employers to provide up to 12 weeks of paid leave to employees who are unable to work (or telework) due to a need to care for a child whose school is closed due to pandemic-related precautions.

But with schools exploring a variety of reopening options, what does it mean for a school to be “closed” for purposes of the FFCRA? The Department of Labor (DOL) has addressed these questions in new clarifying guidance on its FFCRA Frequently Asked Questions page. DOL’s guidance, which focuses on whether the school is closed to in-person attendance, addresses some of these options.

Parents’ Choice: In-Person vs. Remote Learning
Some schools offer a choice: families can decide whether to have a child attend in-person or remotely. The DOL advises that FFCRA leave will not apply to families who choose remote learning in this circumstance, because the school is technically open for students to attend in-person. In other words, the DOL takes the position that the need to care for the child is not related to a COVID-19 closure, but rather a family’s choice of remote learning.

However, the DOL advises that other FFCRA qualifying reasons may apply in this scenario—such as where there is an applicable government quarantine order or where a health care provider has advised self-isolation for COVID-19 related concerns.

Remote Option (For Now)
Some schools plan to begin the year with fully remote instruction, but may re-open with in-person attendance later in the year depending on local conditions. In this scenario, DOL advises that FFCRA leave will apply for days in which the school offers only remote learning (i.e., the days in which the school is closed to in-person attendance). If/when a school reopens for in-person learning, FFCRA leave may continue to apply, depending on the details of the reopening plan.

Hybrid Attendance
Some schools provide a hybrid option, with students alternating between days of in-person attendance and remote learning. In this instance, schools typically permit students to attend in-person only on designated days. Here, the DOL advises that FFCRA leave will apply only on days when a student is not allowed to attend in-person and must participate remotely due to a hybrid schedule requirement.

The updated DOL FAQ document provides some helpful clarification, but in reviewing it, employers should keep three things in mind. First, the language in the DOL’s FAQ document itself does not have the force of formal regulation; as such, there is always the risk that a court could decline to follow this guidance in applying the FFCRA.

Second, whether an employee’s child has a pandemic related school closure is not the end of the inquiry in determining whether FFCRA leave applies. To qualify, the employee must be unable to work (or to work remotely) because they need to provide child care as a result of the school closure. Because individual employee circumstances will vary, employers should plan to have a good-faith, interactive dialogue with employees about their specific circumstances.

Third, the FFCRA provides for a maximum of up to 12 weeks of paid family leave for COVID-19 related school closures from April 1, 2020 through December 31, 2020. At this point, it is unclear whether Congress will extend FFCRA leave. Employers should review employees’ leave usage. To the extent employers have already provided employees with FFCRA leave for school closures earlier in this calendar year, it will affect employees’ allotments of leave moving forward.