Employment Law Alert
Department of Labor Issues FFCRA Guidance as School Reopen
The Families First Coronavirus Response Act (“FFCRA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) require covered employers – those with 500 or fewer employees – to provide eligible employees with paid leave if an employee is unable to work because s/he has to care for a child whose school is closed or child care provider is unavailable due to COVID-19. Qualifying employees are entitled to be paid up to two weeks of paid sick leave and up to an additional ten weeks of expanded family and medical leave, both of which are paid at two-thirds the employee’s regular rate of pay when such leave is for the aforementioned childcare reasons.
Although there is leave available to care for a child due to a school or daycare closure under the FFCRA and the EFMLEA, as schools reopen in different formats this fall, employers and employees alike have been left wondering about their rights and obligations when a student practices virtual learning; either by choice or by necessity. Questions such as what is considered “closed” for purposes of these laws and what if school resumes but is completely or partially virtual have been at the forefront.
Late yesterday, the U.S. Department of Labor’s Wage and Hour Division addressed some of these questions when it published new guidance about qualifying for paid leave under the FFCRA and the EFMLEA as it relates to the reopening of schools. Specifically, the guidance discussed the following:
- Hybrid-learning: Where a child’s school is operating on an alternate day basis (i.e., the school is open each day, but students alternate between attending in person some days and participating in remote learning other days), the child’s parent is eligible to take paid leave under the FFCRA/EFMLEA on days when the child is not permitted to attend school in person and must instead engage in remote learning, as long as the parent needs the leave to actually care for the child during that time and only if no other suitable person is available to do so. The parent is eligible for paid leave under the FFCRA/EFMLEA on each of her/his child’s remote learning days.
- Parent opts for remote learning: Where a school gives a parent a choice between in person attendance or a remote learning plan, and the parent opts for remote learning, s/he is not eligible for paid leave under the FFCRA/EFMLEA because her/his child’s school is not “closed” due to COVID-19 related reasons.
- School starts with remote learning plan: When a child’s school starts the school year with a remote learning program but plans to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year, the parent is eligible to take paid leave under the FFCRA while her/his child’s school offers remote learning.
If you have any questions about your obligations for providing leave under the FFCRA/EFMLEA, or any other questions about what you should be doing in light of the COVID-19 pandemic, please do not hesitate to contact Bryan Niemeyer, Certified Labor and Employment Law Specialist, FGKS Law, at 937-492-1271 or bniemeyer@fgks-law.com.
