September means “Back to School.” But with the challenges presented by the coronavirus pandemic, in 2020, this rite of passage is markedly different from previous years. While many students recently returned to school for their first day “back to school” since March (when the pandemic abruptly forced schools to shut their doors), in this new school year, many students are continuing to learn remotely or through hybrid schedules where the students attend classes both in-person and remotely. Each school district has unique reopening plans leaving employers unsure of their leave obligations under the Families First Coronavirus Response Act (“FFCRA”) for their employees with school-age children. (For additional information on FFRCA obligations see our prior client alert, Families First Coronavirus Response Act: What Employers Need to Know.)
The FFCRA, which became effective on April 1, 2020, expires on December 31, 2020. During this time, employers must provide certain paid leave benefits for their employees. Among other leave benefits, the FFCRA requires employers with less than 500 employees to provide up to 12 weeks of expanded family and medical leave (10 of which are paid) (“EFML”) to employees who are unable to work (or telework) due to a need to care for their child whose school or place of child care is closed or unavailable due to COVID-19 related reasons. These employees are also eligible for two weeks of emergency paid sick leave (“EPSL”) and as such, may receive the two weeks of EPSL during the first two unpaid weeks of EFML. Paid leave benefits that are available due to school or child care closures are paid at two-thirds of an employee’s regular pay subject to certain caps. The EPSL benefit for childcare related reasons cannot exceed $200 daily and $2,000 in the aggregate and the EFMLA benefit may not exceed $200 daily and $10,000 in the aggregate for each employee. Therefore, an employee who is unable to work because their child’s school or daycare is closed due to COVID-19 may be eligible for a total FFCRA benefit up to $12,000.
Recently, the United States Department of Labor (“DOL”) issued guidance addressing specific childcare-related issues related to the reopening of schools for the new school year. This DOL guidance can be found in the DOL’s FFCRA: Frequently Asked Questions.
Hybrid School Attendance
Some school districts are providing a hybrid attendance option where students alternate between days of in-person attendance and remote learning. Generally, schools using hybrid school attendance methods allow students to attend in-person classes only on certain days of the week. If an employee does not have a suitable person to care for the student on remote days, an employee whose child is attending a school utilizing the hybrid method is entitled to FFCRA leave only on days when the child is not permitted to attend school in person and must attend class remotely. In other words, for FFCRA purposes, a school is effectively “closed” on days that the child cannot attend in person and therefore an employee with a school-age child would be entitled to FFCRA leave on those days.
Opt Out of In-Person Attendance
Some schools are offering families a choice of whether to send their child to attend school remotely or in-person. FFCRA leave is not available for employees who voluntarily choose to have their child attend school remotely when the school is open for in-person attendance. As such, the DOL provides that because the school is “open” for in-person learning, employees who choose to have their children opt out of in-person attendance (for fear of contracting COVID-19) are ineligible for FFCRA leave, unless there is a government or healthcare provider issued quarantine order for COVID-19 related concerns.
Remote School Attendance
Some school districts have begun the school year with only remote instruction and as a result some parents/guardians will be requesting leave from work under the FFCRA. These employees would be eligible for both forms of FFCRA leave (i.e., EFMLA and EPSL). However, if these schools later open their doors to in-person classes, employees with children in these schools would only be eligible for FFCRA leave on the days that the school is only offering remote learning. Ultimately, the details of the state approved reopening plan may determine an employee’s eligibility for FFCRA leave.
Employers who provide paid leave mandated by the FFCRA are eligible for reimbursement via refundable tax credits and should retain records of disbursements. Additionally, employers may request that employees requesting FFCRA leave to care for a child whose school or place of care is closed, or child care provider is unavailable, provide documentation, including the name of the child being cared for; the name of the school, place of care, or child care provider that has closed or become unavailable; and a statement from the employee that no other suitable person is available to care for the child.
Back to School 2020 poses unique challenges for parents, and employers must be aware of the leave benefits that employees with school-age children are entitled to under the FFCRA.