Thursday, July 23, 2020

Coronavirus Update 7-23-2020: The FFCRA implications of schools reopening

With schools set to reopen over the next four to six weeks, your employees will be asking for time off from work if their children will be distancing learning for any part of the upcoming school year. The FFCRA provides for up to 80 hours of paid sick leave and 12 weeks of expanded FMLA Leave (the latter 10 of which are paid) for employees who are caring for their child(ren) whose school has been closed because of COVID-19 precautions.

The question of whether employees are entitled to take leave under the FFCRA for children who are distance learning this school year will depend on why they are distancing learning this year.

1/ If a school is open for in-person learning and a child is distance learning by choice through an online option the school offers, the child's parent is not entitled to FFCRA leave. In this case, the school is not closed; its physical location is open and the parent is choosing a remote learning option. Therefore, the employee does not have a qualifying reason for child care leave under the FFCRA. Note, however, that certain parents in this scenario still might qualify for FFCRA leave if the child is distance learning upon the advice of a health care provider to self-quarantine because of concerns related to COVID-19.

2/ If a school is requiring full-time online instruction or distance learning, the employee will qualify for child care leave under the FFCRA, provided that the employee certifies to the employer that no other suitable person will be caring for the child(ren) during the period for which the employee takes FFCRA leave. According to the DOL's FFCRA FAQ's, "If the physical location where your child received instruction or care is now closed, the school or place of care is 'closed' for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as 'distance learning,' your child is still expected or required to complete assignments."

3/ If a school provides a mix of in-person and distance learning (e.g., a student attends class in-person in the morning and online from home in the afternoon, or in-person two days per week and remotely three days per week), an employee could take intermittent FFCRA leave, but only with the agreement of the employer. Under the FFCRA, intermittent leave is not a right and is only available if the employer permits it. Note, however, that the DOL "encourages employers and employees to collaborate to achieve flexibility."

These issues will absolutely arise once children return to school. Best to figure out now how you are going to handle, because your employeees will be requesting FFCRA leave for their children's distance learing during the upcoming school year.