The DOL recently updated its guidance regarding when childcare leave can be taken under the Families First Coronavirus Response Act (or “FFCRA”).  FFCRA requires most employers to provide employees with up to 12 weeks of protected leave, paid at 2/3rds the employee’s regular rate of pay, up to a maximum of $200 a day (reimbursed in the form of a tax credit), if an employee is unable to work or telework because the employee’s child’s school or place of care is closed for reasons related to COVID-19.

As we start the new school year, many schools are still either partially or fully closed for in-person learning, and the DOL just issued new guidance regarding what it means to be “closed” for purposes of FFCRA leave:

• If a school has moved to online instruction or a similar model in which children are expected to attend class and/or complete assignments at home, it is still considered “closed” for FFCRA purposes.
• If a school is operating on an alternative day or similar hybrid basis (e.g., students alternate between days attending school in person and days participating in remote learning), it is considered “closed” for FFCRA purposes only on the days that the child is not permitted to attend school in person and must instead engage in remote learning. (Note that while intermittent FFCRA leave is at the employer’s discretion, this new guidance suggests that FFCRA leave should be made available intermittently for periods of home learning.)
• If a school gives parents a choice between having their child attend in person or participate in a remote learning program for the fall, the school is not considered “closed” for FFCRA purposes. If parents choose to have their child remain home because, for example, they are worried about their child contracting COVID-19, they are not entitled to paid leave under FFCRA.