DOL Adds FAQs On School Reopening and FFCRA

Ruder Ware

Today the U.S. Department of Labor’s Wage and Hour Division published responses to three new frequently asked questions for regarding qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) in relation to the reopening of schools.  This list of FAQs has now hit 100 and is a great guide for employers regarding the FFCRA.  (Note that the DOL has not yet addressed the federal judge’s ruling earlier this month which invalidated several provisions of the FFCRA.  Our e-alert on this ruling can be found here.)

The three new FAQs are below:

Is the employee eligible if the child’s school operates on an alternate day basis?

Yes – If a school is operating on an alternate day basis where students are only permitted to attend school on their allotted in-person days and participate in remote learning on the other days, the employee is eligible for paid leave under the FFCRA. They are eligible on the days when the child is not permitted to attend school in person, as long as they need leave to actually care for the child and only if no other suitable person is available to do so. For purposes of the FFCRA, school is essentially “closed” for the child on the days when he or she cannot attend in person.

Is the employee eligible if they choose to enroll their child in remote learning when in-person instruction is available?

No – If the school is providing families with a choice between a remote learning program and in-person instruction, then the employee will not be eligible for leave under the FFCRA, even if the choice is because of COVID-19 concerns. In this situation, the school is not “closed” due to COVID-19 related reasons and is open for the child to attend.

However, if your child is under a quarantine order or has been advised by a healthcare official to self-isolate or self-quarantine, then you may be eligible for paid leave to care for him or her.

Is the employee eligible if the school year beings with remote learning but shifts to in-person instruction?

Yes – If the school is “closed” (operating under a remote learning program), then the employee is eligible to take paid leave. The employee will remain eligible so long as the school remains “closed.” If the school reopens then the eligibility under the FFCRA will depend on the particulars of the school’s operation as discussed above.

(Special thanks to Nicole Zeman for her assistance with this article.)

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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