Who Needs to Know
Employers covered by the FFCRA with employees requesting leave to care for children whose schools are implementing total or partial virtual instruction models and/or individuals potentially eligible for PUA benefits for the same reason.

Why It Matters
Employers and employees continue to grapple with how to balance leave requests related to childcare responsibilities in the context of schools reopening in a total or partial virtual learning model. The DOL provided some additional clarity regarding eligibility for FFCRA leave and PUA benefits in this situation in updates published August 27, 2020.

In a move that may bring clarity to employers facing requests from employees for Families First Coronavirus Response Act (FFCRA) leave for childcare purposes, the Department of Labor (DOL) offered additional guidance regarding when employees may be eligible for paid leave when caring for children who are virtually learning.

As most employers are well aware, the FFCRA provides that covered employers (generally, private employers with less than 500 employees) must provide two weeks (up to 80 hours) of emergency paid sick leave to all employees and up to an additional 10 weeks of paid expanded family and medical leave to employees who have been employed for at least 30 days for a variety of COVID-19 related reasons – including for employees who are unable to work (or telework) and need leave because they are caring for a child whose school or place of care is closed (or child care provider is unavailable).

The DOL recently clarified in updated FFCRA Q&As when it considers a child’s school or place of care “closed” such that employees may be entitled to FFCRA leave when the school is operating wholly or partially remotely.

Employees Are Not Eligible for FFCRA Leave If In-Person Instruction is Available

If an employee’s child’s school provides an option between in-person or remote learning and the employee elects remote learning for any reason (including, for example, because the employee worries that his or her child might contract COVID-19 at school and infect other family members) the DOL has indicated that the child’s school is not “closed” due to COVID–19 related reasons and FFCRA leave is not available for the employee. Note, however, that if the employee’s child is under a quarantine order or has been advised by a healthcare provider to self-isolate, the employee may still be eligible for FFCRA leave in that context.

Employees May Be Eligible for FFCRA Leave If Online Instruction is Mandatory

Conversely, if the school has moved entirely to online or remote instruction, the school is considered “closed” due to COVID-19 and an otherwise eligible employee may be entitled to FFCRA leave as long as the employee “need[s] the leave to actually care for [his or her] child during that time and only if no other suitable person is available to do so.” Likewise, if the school operates a hybrid model, such as rotating days/weeks where students are required to attend virtually, the school is considered “closed” for FFCRA leave entitlement purposes on the days the child is instructed to remain at home.

DOL Provides Mirroring Guidance Regarding PUA Benefits Eligibility for Caregivers with Children Engaged in Virtual Learning

The DOL also provided guidance regarding when caregivers are eligible for Pandemic Unemployment Assistance (PUA) benefits in an August 27 Unemployment Insurance Program Letter.

As we’ve covered previously, PUA benefits, established by Section 2102 of the CARES Act, are a federal unemployment insurance benefit available to certain workers who are otherwise ineligible for state unemployment benefits, including workers unemployed due to one of the COVID-19 related reasons outlined in items (aa) through (kk) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act. Among other reasons, item (dd) in that section provides that an individual may be considered unemployed if their child is unable to attend school because it is closed as a direct result of the COVID-19 public health emergency, and child supervision at the school site is required for the individual to work.

In its August 27 guidance, the DOL first reiterated that as with FFCRA leave, individuals are not eligible for PUA unemployment benefits if they have the ability to telework with pay. In addition, an individual cannot receive PUA benefits if he or she is receiving paid sick leave or other paid leave benefits, regardless of whether he or she is unemployed, partially unemployed, or unable or unavailable to work for any of the COVID-19 related reasons outlined in Section 2102.

Individuals Are Not Eligible for PUA Benefits to Care for a Child if They Elect Remote Learning When Full-Time In-Person Options Are Available

As in the FFCRA context, the DOL confirmed that if a school provides a choice between full-time in-person instruction and remote learning, the school is considered open for purposes of Section 2102 of the CARES Act. If an individual who is a primary caregiver elects a remote option in this context, the individual does not qualify for PUA benefits under item (dd), unless they meet another listed COVID-19 related reason under Section 2102 of the CARES Act. The DOL further explained that “[a]n individual who continues to claim PUA benefits under item (dd), despite the reopening of schools, may face an overpayment, as well as penalties for fraud and criminal prosecution.”

Otherwise Eligible Individuals May Be Eligible for PUA Benefits If Instruction is Mandated as Totally or Partially Remote

Finally, the DOL confirmed if a school is providing only online instruction, it is not open for students to be physically present and is therefore considered “closed” for purposes of PUA eligibility. If an individual is not receiving paid leave benefits and is unable or unavailable to work because he or she is the primary caregiver for the student(s), the individual may be eligible for PUA (provided he or she is not otherwise eligible for regular unemployment insurance under applicable state rules). The DOL also clarified as to remote work that “[a]n individual who is permitted to work from home, but must provide such ongoing and constant attention to the student(s) for whom he or she is the primary caregiver that working from home is not possible, may be considered unable or unavailable for work.”

If a school operates a hybrid model, an individual may be considered unable or unavailable for work only during the days or hours in which the individual’s child is required to remain away from school (and must report earnings from other days/hours when filing for PUA benefits).