Back to School Rules—The Department of Labor Provides New Guidance Regarding the Availability of FFCRA Emergency Leave for Employees Due to COVID-Related School Closures

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As the country gears up for a new school year, employees with school-aged children are facing a number of challenges. Some schools are requiring that students participate in remote learning, while others are implementing a “hybrid” approach that allows parents to choose whether to send their children for in-school sessions or continue remote learning. Still other schools are requiring parents to participate in a different kind of hybrid approach where students alternate days of remote learning with days of in-school instruction. 

Parents and employers alike are trying to figure out how to juggle these different learning scenarios with employees’ work obligations. To that end, the Department of Labor (“DOL”) has issued new guidance on their Frequently Asked Questions (“FAQ”) page regarding when employees are eligible to take leave under the Families First Coronavirus Response Act (“FFCRA”) to care for their child due to a “school closure.”

As a reminder, the FFCRA provides the following kinds of leave:

  • up to two weeks (up to 80 hours) of paid sick leave at two-thirds of the employee’s regular rate of pay because the employee is unable to work due to a bona fide need to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19; and
  • up to an additional 10 weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate of pay when an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

(For a more detailed discussion of other types of absences covered by the FFCRA, see our prior Client Alert.)

As set forth in the DOL’s new FAQ Numbers 98-100, the question of whether an employee is eligible for leave to care for a school-aged child depends entirely on whether the school is mandating or simply allowing the option for an employee’s minor child to attend school remotely from home.

Thus, the DOL has explained that where school is open each day, but students are required by the school to alternate between days attending school in person and days participating in remote learning, an employee would be eligible for FFCRA on the days their child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for their child and only if no other suitable person is available to do so.

However, if an employee is given the choice between having their child attend in person or participate in a remote learning program for the fall, and the employee voluntarily elects the remote learning alternative, the employee will not be eligible to take paid leave under the FFCRA, because the child’s school is not “closed” due to COVID–19 related reasons. (Of course if there are other qualifying reasons, such as the need to care for a child with symptoms of COVID-19, then the employee may still be eligible for FFCRA for reasons unrelated to a school closure.)

Employers with 50 or more employees should keep in mind that prior use of FMLA for non-COVID reasons may affect the amount of emergency FMLA available to employees for COVID-related reasons. Employees may only take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If they have taken some, but not all, 12 workweeks of leave under FMLA during the current 12-month period (as determined by the employer), the employee may take the remaining portion of leave available. However, if the employee has taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded family and medical leave.

Employees are entitled to up to two weeks of paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave they have taken under the FMLA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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