Emergency Leave Is Running Out Across The Country—What To Do If Employees’ Kids Are Still Not Back To School?

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Seyfarth Synopsis: The emergency leave provided by Congress in March 2020 at the beginning of the COVID-19 pandemic is starting to run out for many employees whose children’s schools are still closed. Employers and employees alike now wonder what to do going forward when employees still cannot return to work. With schools still largely closed to students, employers may accommodate continuing absences when employees cannot find care for their children, to the extent the accommodation does not interfere with ongoing business operations. Maintaining an open dialogue with employees remains a key consideration as employers, employees, and their families deal with the lasting effects of the pandemic at the workplace.

In March 2020, Congress expanded the permissible use of leave under the Federal Family Medical Leave Act (“FMLA”) to allow employees at companies of under 500 people to receive emergency FMLA leave because of a qualifying need related to a public health emergency, included a need to care for a child under age 18 if the child’s school or place of care has closed, or the child’s care provider is unavailable. This legislation, also known as the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act, was enacted under what is commonly known as the Families First Coronavirus Response Act (“FFCRA”).

The Pandemic Continues, And So Does The Need For Leave

Now, seven months later, employees are either running out of leave time or have already run out, but many children, particularly in parts of the country hardest hit by COVID-19, are not yet allowed to return back to school, or are returning on a hybrid schedule with only part-time in-school instruction. Parents and caregivers have few options to keep their families safe amid the ongoing public health emergency. What can employers do to address these questions? The answers are not abundantly clear under existing laws, and there are no federal bills in the pipeline that would answer these questions.

Currently, the emergency leave provisions under federal law are treated in the same way as protected leave under the FMLA. And, at the end of either leave, the employee is entitled to return to the same or nearly equivalent job, as the Department of Labor set forth in the FAQs issued in the wake of the FFCRA.

Continued Flexibility Encouraged

But what happens once the employee’s emergency leave has run out, and schools remain closed? There is no definitive guidance on how to respond to this circumstance.

Given the language and intent of both state and federal leave laws, and the lack of existing guidance, a prudent approach for engaging with employees as they respond to continued school closures would be to tap into your existing policies and procedures to permit continued flexibility. For example, employers should already have a reasonable accommodation procedure under the Americans with Disabilities Act (and its various state law analogs), which could be leaned on to provide structure for responding to parents’ continued needs. This means that, although the employee’s job would not be “protected” under the FMLA after their FFCRA leave expires, the employer may choose to provide some amount of additional unpaid leave as a reasonable accommodation, based on the reality that the employees’ children cannot go back to school. Likewise, the Department of Labor has encouraged employers to “review their leave policies to consider providing increased flexibility to their employees and their families,” reminding employers that these leave policies must be non-discriminatory.

Similar to addressing expired leave under the FMLA and ADA, the employer should be cautious in simply letting an employee go when leave entitlements expire. Instead, the employer may want to consider going through an interactive process with the employee to determine whether a reasonable adjustment can be made—such as additional time off, a modified schedule, or a work-at-home arrangement— in order to care for someone who is ill, to care for children whose schools have gone remote, or to protect themselves because they may be in a high-risk group and are anxious about returning to the workplace. In particular, if an employee informs the employer that schools are scheduled to reopen in the coming weeks, the employer may want to consider a short continuation of the existing leave or a modified work schedule.

Preventing Potential Litigation

Given the new ground these issues are breaking, it is unsurprising that COVID-related lawsuits are on the rise, including lawsuits claiming leave discrimination and retaliation. So before an employer takes action with respect to an employee remaining on leave (or recently returning from leave), the employer needs to thoughtfully consider all options, which could include modifying work schedules, extending leave, or bringing employees back to a position other than their former role.

Employers should avoid terminating the employee’s employment at the end of a protected leave without communicating with the employee first, as a failure to do so could prompt a claim of retaliation for taking the leave. As with the FMLA, ADA, and most state discrimination statutes generally, there is no bright-line test for whether to grant any particular accommodation request, and employers should analyze each employee’s circumstances on a case by case basis.

Don’t Forget To Consider Local Law Implications

Matters get even more complicated with state and local ordinances that may obligate employers to provide additional leave for similar reasons, including general paid “sick leave” laws that existed pre-COVID-19. For instance, states such as Arizona, California, Massachusetts, Michigan, and New Jersey have general paid leave laws that cover school closure leaves for employees all the time. In addition, the list of transitional and COVID-19 paid sick leave laws that cover absences related to school and child care closures is now more than 30. A few notable examples employers should be on the lookout for include:

  • Colorado’s COVID-19 Health Families and Workplaces Act provides up to 48 hours of paid leave for issues related to public health emergencies, including the need to care for children if schools are closed.
  • Nevada’s Paid Leave Law requires employers to provide up to 40 hours of paid time off for any reason, and now can be used for COVID-19 related leaves as well.
  • Los Angeles’ recent Supplemental Paid Sick Leave law requires paid leave where an employee needs time off to care for a family member whose school or care provider is unavailable due to COVID-19.
  • San Francisco’s Family Friendly Workplace Ordinance requires employers to engage in a formalized process to provide flexible and predictable schedules due to family obligations, including the need to care for children who are not in school.
  • Cook County, Illinois’ Earned Sick Leave Ordinance requires paid leave of up to 40 hours of leave per year for several reasons, including if the employee’s school or place of care is closed by a federal, state or local public official.

Careful employers should check these and other state, city, and county ordinances to see if the law extends protected leave beyond that originally provided under federal requirements.

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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