The U.S. Department of Labor’s Wage and Hour Division (WHD) published new frequently asked questions (FAQs) for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) related to the reopening of schools.
The updated guidance explains eligibility for paid leave relative to the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning.
FFCRA Benefits
The FFCRA allows certain employees to take:
– up to two weeks of paid sick leave; and
– up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specified reasons related to COVID-19.
An eligible employee can take both types of paid leave “because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”
Different School Formats Create Need for Clarification
The FAQs were published in response to many requests for guidance clarifying whether employees qualify for paid leave when:
- A child attends a school operating on an alternate day basis;
- A parent chooses remote learning when in-person instruction is available; and
- A school begins the year with remote learning but may shift to in-person instruction if conditions change.
The DOL explains eligibility under these scenarios in its FAQS at questions 98-100 as follows:
Q98: My child’s school is operating on an alternate day (or other hybrid attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
A: Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time 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” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.
Q99: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
A: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend.
FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.
Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.
Q100: My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?
A: Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.
DOL Resources
The DOL also provides other resources to complement its FAQs to help employees and employers navigate the changes in the workplace brought on by COVID-19, including an online tool for employees to determine their eligibility for paid leave, and short videos and infographics explaining the law’s benefits.
Of course, it is always wise to contact legal counsel for guidance when employment issues related to COVID-19 arise.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
