On August 27, 2020, the Department of Labor’s Wage and Hour Division released guidance relative to the re-opening of schools and paid leave. They provide some clarity around eligibility for paid leave relative to the various phases and schedules that schools have announced as they begin to reopen. It includes guidance for schools that are blending in-person instruction with distance learning. It is important to note, that there has been no expansion of the existing FFCRA FMLA leave.
The FFCRA leave entitles 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). An eligible employee may have taken some leave in March or April. They will only have their balance of the 12-week leave available to them whether or not schools fully re-open. Eligible employees may take both types of paid leave for several reasons including “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 coronavirus related reasons.”
The guidance is in the form of Frequently Asked Questions under Return to School.
- The DOL cautions employers from denying employees’ requesting to take leave under the FFCRA simply because the employees have been working productively with their children at home. Despite whether or not employees have been able to work from home and maintain productivity while having their children at home, there are still various legitimate reasons that qualify for leave under the FFCRA.
- The school’s closure must be based on a COVID-19 related reason. Thus, pre-planned holidays, summer, spring or fall breaks would not be qualified reasons take leave since these closures are not related to COVID-19.
- Conversely, an employee may be able to take leave during the periods mentioned above if his or her child’s care provider is closed for reasons related to COVID-19. In other words, if their usual child care provider for pre-planned breaks is not open due to COVID-19, this may be a qualifying reason to take leave under the FFCRA.
- For schools blending in-person instruction and distance learning, employees may take leave under the FFCRA on the days the child is not permitted to attend school in person and must engage in remote learning. However, they are not eligible the days that children are scheduled for in person learning.
- For parents whose schools provide them a choice between having their children attend in person or participate in remote learning program, they are not eligible to take leave under the FFCRA because the school is not closed.
The newest FAQs finally provide guidance that has been perplexing employers. That said, questions continue. Once all FCCRA leave is exhausted, it is up to the employer to determine whether or not they may want to continue to grant unpaid leave to the employee if the child’s school continues to be closed, on a phased schedule, or fully on a remote learning track. Employers should seek legal counsel to work through these difficult issues and to ensure that they have the proper FFCRA policies in place.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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