We can all agree: it’s messy. School districts are charting different courses, with some starting in-person full-time or part-time, some starting online, and some giving parents a choice among various instruction models.
Additional complications are created by the lack of a uniform childcare solution for school-age children. Employees have different “back up” childcare options or have no access to back up care options at all, depending on finances, family availability, the child’s age and needs, and community care resources.
In other words, each employee’s situation heading into the 2020-2021 school year is uniquely challenging, but you can still plan and be prepared for such challenges.
Many, if not most, companies are hearing from concerned employees who are trying to plan for this unprecedented school year. This article goes over several common questions about emergency paid leave under the Families First Coronavirus Response Act (FFCRA) specific to the upcoming school year, and reviews several strategies employers are considering to assist employees balance childcare and work obligations. Specifically, we address the many impacts under these two basic scenarios:
If an employee tells your company they may not be able to work because they need to be at home with their children, your company should consider its obligations under the Families First Coronavirus Response Act (“FFCRA”). The FFCRA applies to most companies with fewer than 500 employees. It provides up to 12 weeks of protected emergency Family and Medical Leave Act (EFMLA) leave for employees who must stay home to care for a child due to a school or daycare closing. This leave is partially paid by Emergency Paid Sick Leave for the first two weeks, then under the EFMLA for the remaining ten weeks.
Below are the most common questions we are receiving right now about paid leave under the FFCRA. If you are not familiar with FFCRA, please review the DOL’s website.
Q. Is a school considered “closed” on days when only virtual (and no in-person) instruction is provided?
A. Yes. If an employee’s child cannot be physically present in school on a particular day due to a decision made by the school to offer virtual instruction to the child on that day, the school is considered “closed” to the child on that day. Thus, if the employee must stay at home to care for the child on that day and the employee cannot telework, the employee qualifies for paid emergency leave under the FFCRA unless they have already used up their paid emergency leave.
Q. Is a school considered “closed” if it starts in-person but then shifts to 100% virtual instruction due to COVID-19 cases appearing in the school
A. Yes. The same analysis above would apply.
Q. Is a school considered “closed” if the school offers a choice between in-person and virtual learning and the employee chooses virtual learning for their child?
A. (Updated 8-28) No, because the school is open for the child to attend. The DOL has said that if a child is home not because the school is closed but because the parent has chosen for the child to remain home, the parent is not entitled to FFCRA paid leave unless the child is under a COVID-19 quarantine/self-isolation ordered by a health care provider or government authority.
Q. Following up on the last question, what if the employee chooses virtual learning for the child because the child has a serious health condition that makes them particularly vulnerable to COVID-19?
A. (Updated 8-28) An employee in this situation would qualify for up to 80 hours of emergency paid sick leave under FFCRA only if the child’s healthcare provider recommends that the child quarantine at home due to the child’s COVID-19 vulnerability. However, once the 80 hours are over, the employee would not qualify for emergency paid FMLA because the child’s school is not “closed.” Depending on the facts of the situation, the employee potentially could qualify for “regular” unpaid FMLA.
Q. Can we deny paid leave under FFCRA to our married employees assuming their spouses can stay home and care for the children?
A. In most cases, no. You cannot deny paid leave to an employee simply because they are married and you assume their spouse can stay home. If the employee tells you that their spouse is not available to care for the child and the employee must care for the child, you should accept them at their word unless you have some good evidence they are being untruthful. Note that if both spouses work for your company, they are both entitled to 12 weeks of emergency FMLA, even if your policy limits them to a combined 12 weeks for regular FMLA.
Q. If a child’s school is open for in-person education some days but not others, do we have to allow the employee to take “intermittent” emergency paid FMLA under FFCRA?
A. (Updated 8-28) Yes, because the school is closed to the employee’s child on days that the child cannot attend in person. The employee can take paid leave under the FFCRA on each of the child’s remote learning days.
Q. How do we count 12 weeks of leave in situations where an employee takes intermittent FMLA?
A. At this time, we recommend taking a similar approach to “regular” FMLA – that is, converting the employee’s 12 weeks of leave into a “bank” of hours, and deducting from the bank when they take an increment of leave. For example, an employee who typically works 40 hours per week receives 480 hours of emergency paid FMLA; if he uses 20 hours of emergency paid FMLA per week and works 20 hours per week, he could continue taking leave for 24 weeks (but not beyond December 31, 2020, when entitlement to FFCRA leave ends under current law).
Q. Do employees get 10 weeks or 12 weeks of paid leave to care for a child due to a school or daycare closing?
A. In most cases, they get 12 weeks. The first 2 weeks typically are paid under the emergency paid sick leave provisions of FFCRA, and the next 10 weeks are paid under the emergency paid FMLA provisions of FFCRA. The amount of pay for leave to care for a child is 2/3 of the employee’s regular rate of pay up to $200/day. Note that situations can get complicated where an employee has already used their emergency paid sick leave for reasons other than childcare.
Q. We have fewer than 50 employees. Do we have to offer emergency paid FMLA leave under FFCRA since we’re not covered by the “regular” FMLA?
A. Yes, unless your company qualifies as a “health care provider” under DOL guidance or if offering FFCRA leave to an employee would cause your company to essentially stop operating. The DOL’s definition of health care provider is quite broad and sweeps in many companies providing health care and health care services. If you’re not a health care provider and under 50 employees, your ability to deny FFCRA leave is very limited to unique situations where an employee’s presence at the work is practically essential to your company continuing as a going concern.
Q. If an employee has taken or exhausted their regular FMLA or emergency FMLA in the same 12 month period in which they are requesting emergency FMLA, do they get another 12 weeks of emergency FMLA for the fall semester?
A. No. For example, if an employee used 12 weeks of FMLA in the same 12 month period in which they request emergency FFCRA leave to care for a child, the employee would not be entitled to any emergency FMLA, but would be entitled to 2 weeks of emergency paid sick leave assuming they haven’t already used their emergency paid sick leave. As another example, if an employee used 6 weeks of emergency FMLA during the spring semester, they would be entitled to the balance of 6 weeks of emergency FMLA during the fall semester.
Q. Are new employees entitled to paid FFCRA leave?
A. Employees who have been employed for at least 30 calendar days at the time of the leave are eligible for emergency paid FMLA under the FFCRA. All employees are eligible for emergency paid sick leave under the FFCRA, regardless of hire date.
Q. Are temporary employees entitled to paid FFCRA leave?
Q. Can we require employees to find backup childcare?
A. Not as a condition to taking FFCRA leave. Many employers would like their employees to find daycare options if their child’s school is closed to in-person learning. FFCRA does not allow employers to require employees to find daycare options. In any event, daycare options for school-age children are few, far between, and often prohibitively expensive.
In situations where an employee has exhausted their paid FFCRA leave or they are not eligible for paid FFCRA leave, an employer should have strategies to help that employee through this challenging time.
An employer should consider the following options when developing its strategies for employees who are also parents of school-age children:
We hope this article provides some insights helpful to your company as you help employees with children head “back to school” for this unprecedented school year.
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Employers frequently come to our Compliance and Workplace Solutions team to help them navigate COVID-19 exposures. Let them report to work? Send them home? Make them stay home for two weeks once they get back from that political rally? Although some cases may have unique circumstances, we have compiled common scenarios and set forth options based on an organization’s risk tolerance.
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