On August 27, 2020, the Department of Labor (DOL) issued guidance (in FAQs numbered 98-100) clarifying how the childcare provisions of the Family First Coronavirus Response Act (FFCRA) apply to various remote and in-person school situations. As a reminder, the FFCRA generally requires private employers with fewer than 500 employees and many public sector employers to provide paid leave to eligible employees for certain COVID-19 related reasons, including up to 12 weeks of partially paid leave because of the employee’s need to care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19. Employees qualifying for this FFCRA childcare leave are entitled to two-thirds of their regular pay, up to $200 per day and $12,000 in the aggregate, for which private employers can claim a fully refundable tax credit. (For additional information about the FFCRA, see our prior posts on this blog, including here and here.)

The FFCRA childcare leave provision takes on renewed importance as schools across the country begin to reopen with a variety of approaches to instruction. Some schools and school districts are offering only in-person instruction, only remote instruction, or a hybrid schedule (e.g., three days in school, two days distance learning). In some cases parents have the choice of in-person or remote instruction for their children.

The new DOL guidance explains the impact of these differing approaches on the availability of FFCRA leave for parents as follows:

• Hybrid schedule: For employees with children on a hybrid school schedule, FFCRA childcare leave is available only on those days when the child is not permitted to attend school in person, and only so long as the employee needs the leave to actually care for the child during that time, and no other suitable person is available to do so.
• Optional remote instruction: For employees offered a choice between remote and in-person instruction for their children, FFCRA childcare leave is unavailable for those who choose for their children to attend remotely, because the school is not “closed.” However, if, because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child under another FFCRA provision.
• Initial remote instruction: For employees with children whose schools initially provide only remote instruction, but may switch to in-person attendance later, FFCRA childcare leave is available while instruction is remote. Once the school reopens for in-person instruction, the employee’s eligibility for FFCRA childcare leave will depend on the circumstances of the reopening. (We note it is also possible that a school may initially open in-person, and then move to remote instruction due to an infection or other reason, in which case FFCRA childcare leave will be available during the period of remote instruction.)

Because DOL continues to refine its FFCRA guidance, employers should monitor DOL’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant FFCRA policies, or with questions about other COVID-19 issues or matters affecting your workplace.

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