As you are aware, the Families First Coronavirus Response Act (FFCRA) was signed into law in March in response to workers who needed to take time away from their jobs for reasons relating to COVID-19. The law requires that employers with fewer than 500 employees provide two buckets of emergency paid leave -the Emergency Paid Sick Leave and the Emergency Family and Medical Leave Expansion Act, which is paid leave for workers who have a need to care for a child whose school or care provider closed due to COVID-19.
Now, as the school year starts and we see schools resume classes – whether virtually, in-person, or a hybrid of both – the Department of Labor (DOL) has issued new guidance on how the FFCRA can be used:
- In the event that the school offers both in-person and remote learning, and the employee opts out of in-person learning and selects remote learning, the employee is not eligible for FFCRA leave because the child’s school is not “closed” due to COVID-19 related reasons – it is open for the child to attend.
- If the school operates under a hybrid system where in-person learning is restricted to certain days of the week (e.g., M-W-F) and is supplemented with remote learning (e.g., T-Th), then the employee IS eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs leave to actually care for their child and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” on days the employee’s child cannot attend in person, even if this occurs on alternate days.
- An employee IS eligible for FFCRA leave if their child’s before or after school care or childcare provider is no longer available due to COVID-19 related reasons. If the place of care (which includes before or after school programs) is closed or has reduced capacity or if the regular childcare provider is no longer available, FFCRA leave may be available. (A childcare provider includes individuals paid to provide child care as well as family members. One anticipated scenario is that once a child returns to in-person instruction, a grandparent or other family member may no longer be available for after school care due to health concerns. Some employers have asked whether an employee has an affirmative obligation to seek alternative childcare arrangements. Although there is no DOL guidance directly on point, requiring an employee to seek childcare alternatives could give rise to an FFCRA interference claim.)
- Intermittent FFRCA leave IS available if an employee is unable to work or telework because they need to care for their child whose school or place of care is closed or childcare is unavailable due to COVID-19, but only if permitted by the employer.
More information can be found here
This summary was written by Mark Izzo | Founder & Principal