While government officials, academic leaders and public health authorities are scrutinizing whether it is safe for children to return to campus for in-person learning, many employers are grappling with the related question of what this means for them and their workforce.
In addressing this reality, employers should expect that many employees will make requests pursuant to the Families First Coronavirus Response Act (“FFCRA” or “the Act”), which went into effect on April 1, 2020, and currently expires on Dec. 31, 2020.
The act requires employers with less than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19; including where an employee is unable to work (or telework) 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.
Specifically, covered employees must provide eligible employees with: (1) two weeks (up to 80 hours) of emergency paid sick leave at two-thirds the employee’s regular rate of pay; and (2) 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay.
Given the increasing number of schools starting the school year with distance learning, many employers are asking “whether an employee is still entitled to paid time off if school resumes but is virtual?” According to the Department of Labor’s (“DOL”) previously issued guidance, employees are eligible for FFCRA time where the school is physically “closed” and has moved entirely to remote learning.
On Aug. 27, 2020, the DOL issued supplemental guidance addressing more complicated situations, such as where school is partially closed, or where parents are electing between in-person and remote learning.
According to the guidance:
• Where the school is operating on a hybrid/alternative day basis, the employee is eligible to take FFCRA only on the days that their child is not permitted to physically attend school and instead is required to participate in remote learning.
• Where the school provides parents with a choice between in-person and remote learning, and the employee elects remote learning, the employee is not eligible to take FFCRA time. The guidance explained that this is because the school is not “closed” due to COVID-19.
• Where the school is beginning the school year under a remote learning program (for COVID-19 related reasons) and may open for in-person attendance later in the school year; the employee is only eligible for FFCRA time while the child’s school operates remotely.
As back-to-school decisions continue to evolve, employers should expect the unexpected, endeavor to be pragmatic and flexible during these unprecedented times and apply all policies in an even-handed manner.
Employers should also examine and consider revising their policies and request forms relating to paid time off, paid sick time, FFCRA, FMLA, telecommuting and at-work childcare policies.
It is also recommended that employers monitor guidance from the DOL to ensure compliance with the FFCRA and other applicable state and federal employment statutes.
Juliet S. Burgess is the founder and principal attorney at Burgess Employment Law.