The Law @ Work

When Are Employees Entitled to FFCRA Leave to Assist with Remote Learning?

By Andrew J. Adams

It’s the most wonderful time of the year!  Well, it should have been.  For decades, the end of August has brought joy to parents the nation-over for what it signals—the beginning of the school year for children that have been home all summer long.  This year should have brought joy not only for that, but for the added fact that children in many states were stuck at home for the entire summer with nowhere to go.  However, COVID-19 saw an end to the usual end of summer sigh of relief as most schools are opting for remote learning or hybrid learning arrangements for the upcoming school year. 

Dismayed and confused, parents (and their employers) until recently were without any official guidance on how to balance the upcoming school semester and work obligations.  However, the U.S. Department of Labor (DOL) has shed some light on open questions by adding additional questions and answers to its Families First Coronavirus Response Act (FFCRA) frequently asked questions section.  

So what is the biggest question on the minds of employers: are my employees entitled to leave under the FFCRA to assist with remote learning?

The answer is a resoundingly lawyer-like response: it depends. Specifically, it depends on the method of instruction offered by the child’s school and why the child is engaging in remote learning.

Childcare Related FFCRA Leave Generally

Generally, employers subject to the FFCRA must provide up to two weeks of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because of a bona fide need to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19. 

Employees are also entitled to up to 12 weeks of paid expanded family and medical leave.  The first two weeks are unpaid, but the employee can choose to use his or her paid sick leave during those two weeks.  The remaining ten weeks are paid at two-thirds the employee’s regular rate of pay for the same reasons. 

But, this is old news, so why the blog?  Well, welcome to 2020, as the status quo has changed again.  For the first time ever, parents in many school districts nationwide now have the option to choose whether or not to send their child to school for in-person learning or continue to learn remotely.  So the question is, if a parent could send their child to school but chooses not to, are they entitled to FFCRA leave?  Read on to hear what the DOL has to say about it.

School-Mandated Hybrid Learning Qualifies for FFCRA Leave

The DOL guidance bases an employee’s leave eligibility on school schedules and whether or not the employee has an option when it comes to their child’s attendance. 

If the child’s school has opted for a remote or hybrid school schedule (where the child cannot attend in person learning on certain days), the DOL has stated that the employee will be eligible for leave on those days when the child is unable to attend in-person learning.  For example, if the child’s school is open every day, but children are only allowed to attend in person every other day, the child’s parent is eligible for leave on the days where the child is not allowed to attend in-person classes. 

So as far as the DOL is concerned, the child’s school is effectively closed on the days that the child cannot attend in person.  Of note, however, other requirements for leave entitlement still stand: the employee must need the leave to actually care for the child, the employee cannot work remotely, the child is not over 14 (unless there are extenuating circumstances), and the employee is the only suitable person available.

Parents Who Voluntarily Keep their Children at Home Not Covered

What about those who elect to keep their children at home?  The other situation addressed in the DOL’s latest update is for schools who have decided to let parents choose whether or not their child will attend in-person learning. 

When a school has given the employee the option to decide whether their child will attend in-person learning or participate in remote learning, the employee will not be eligible for leave under the FFCRA if they choose to keep their child home.  The employee is not entitled to leave even if the choice is made due to the fear of the child contracting and spreading COVID-19 to their family.  This is because the DOL does not interpret the child’s school as “closed” due to COVID-19 since in-person learning is available.

The DOL also addressed what leave employees are eligible for when the school year starts out all remote but then transitions to some form of in-person learning.  When a school begins the school year remotely and then transitions to in-person or hybrid classes the DOL has indicated that employees would be eligible for leave during the initial remote portion and then under the same guidelines as just discussed.  Keep in mind that the time off afforded under the FFCRA is scheduled to end at the end of this year. 

Entitlement May Change Over the Course of the School Year

It is important to note that as the school year progresses, many school learning arrangements may change.  The DOL has indicated that assessing employee leave eligibility will be a fluid process and may require reassessment if a child’s school changes its policy during the semester.  

Employers need to evaluate every request for leave under the FFCRA on a case by case basis and will need to reassess previous requests if employees indicate their child’s school system has altered their method of learning.

Making determinations about an employee’s eligibility for leave isn’t easy; our attorneys are here to discuss any questions you may have regarding an employee’s eligibility for leave under the FFCRA.

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