As many school districts begin the school year remotely, we have received questions about how to apply the Families First Coronavirus Response Act (FFCRA) leave provisions for employees who request leave to care for a child. Employees may request two weeks (up to 80 hours) emergency paid sick leave (EPSL) and ten additional weeks emergency (paid) family medical leave (EFML) to care for a child if the employee is unable to work or telework because the child’s school is closed due to COVID-19. An employee who takes FFCRA leave for this reason is paid 2/3rd the employee’s regular rate of pay, up to $200/day. These leave provisions raise two important questions:
(1) Does FFCRA leave apply when school is open for virtual instruction; and
(2) Do employees automatically qualify for FFCRA leave if their child’s school is closed?
The United States Department of Labor (DOL) has answered the first question in an FAQ response on its website. In FAQ No. 70, available here, the DOL stated that a school is closed if the physical location where the employee’s child received instruction is closed, even if some or all instruction is being provided remotely. If the school allows some students but not others to receive in-person instruction, the employer will need to determine if the employee’s child is permitted to receive in-person instruction. If an employee's child is not permitted to receive in-person instruction, then the school’s physical location would be closed to that child, and the employee may qualify for leave.
The DOL has also stated in FAQ No. 99 that an employee does not qualify for leave if the school allows parents a choice of either in-person or virtual instruction and the employee chooses virtual instruction for the employee’s child. This is because the school’s physical location is not closed to the child; instead, the employee has elected to keep their child home. Finally, the DOL states in FAQ No. 98 that if a school district provides instruction in a hybrid model (where the school is open each day but students alternate between days attending school and days participating in remote learning), an employee may take leave for each remote-learning day. This is because the school is effectively closed to the employee’s child on remote-learning days.
As to the second question, even if the school is closed to the employee’s child, the employee may still not qualify for paid EPSL or EFML leave. It is important to remember that an employee may only qualify for these types of leave if the employee is unable to work or telework because of the need to care for a child. If the employer allows the employee to telework and the employee can perform teleworking tasks and work the required teleworking hours while caring for the employee’s child, the employee will not qualify for EPSL or EFML.
While many school districts are providing instruction virtually, employers may want to consider allowing employees to telework when the employee is able to perform all essential duties remotely while caring for the employee’s child. This could limit the number of qualifying requests for leave under the FCCRA and could be more cost-effective to districts.
Blog post by Kristi Godden