With fall upon us, employers should prepare for renewed requests for COVID-related paid leave due to school/childcare responsibilities. Many schools are re-opening as, or switching to, a remote curriculum or a hybrid model, mixing both remote and in-person learning. The result will leave parents scrambling to balance work and childcare needs and employers uncertain about their obligations.
The Families First Coronavirus Relief Act (FFCRA), which took effect April 2, 2020, created among other things, limited paid sick leave and paid family and medical leave. Family medical leave (FMLA) was expanded to allow 12 weeks of leave for certain pandemic-related reasons, including caring for a child whose school has closed, or childcare provider is unavailable, due to COVID. To be eligible for this leave, the employee must be employed for at least 30 days. The first two weeks will be unpaid, after which the employer must pay two-thirds of the employee’s regular wages, up to $200 per day.
Additional leave is also available for the school/childcare obligation under FFCRA’s paid sick leave provision, which, unlike expanded FMLA, does not have a minimum employment requirement. An employee hired last week may be eligible for paid sick leave if the request falls within the covered reasons, which include caring for a child whose school has closed, or whose childcare provider is unavailable, due to COVID. Employees taking sick leave for a school or childcare reason are entitled to two weeks of leave at two-thirds of their regular wages, up to $200 per day.
An employee may combine both types of paid leave resulting in up to 12 weeks of leave at two-thirds pay.
At press time, the U.S. Department of Labor (DOL) had not released guidance on all the varying models that schools may utilize. When schools opt for 100 percent remote learning, the answers are straightforward. Under the DOL guidelines, FFCRA leave is triggered if the school or childcare facility is closed due to a COVID-related reason. But what happens when parents opt for remote learning even if the school is open for in-person? In that case, a voluntary decision is unlikely to entitle the parent to paid leave, based on current DOL guidelines. The answer is less clear when schools go to a hybrid model, including a mix of in-person and remote learning. The school is open, but is effectively closed to certain children on certain days. In that instance, the safe bet is yes, leave is required, at least intermittently on those days that the child is scheduled for remote learning.
Many employees took advantage of this leave when FFCRA was enacted in the spring and may have already used some or all of their leave. FFCRA does not expand the total amount of FMLA available, which remains capped at 12 weeks per year. Any FMLA leave an employee has already used this year reduces the amount available to that employee for school/childcare reasons this fall. Similarly, paid sick leave is limited to two weeks total, so if an employee has already used some or all of the federally mandated leave, it will reduce the time available for school/childcare reasons.
FFCRA paid leave is only available for COVID-related absences and does not apply if a parent seeks leave to stay home during school vacation, or to care for a child with a mild illness. The employer is entitled to require the employee to provide the name of the child or children being cared for; the name of the school, place of care, or childcare provider that became unavailable due to COVID-related reasons; and, importantly, a statement representing that no other suitable person is available to care for the child or children during the period of requested leave.
Employers with less than 50 employees may be exempted from providing paid leave for school and childcare related obligations if the costs of such leave would threaten the economic survival of the business; if the employee’s absence would threaten the financial or operational viability of the business, either because his/her specific skill set or if granting the requested leave would not leave enough employees to keep the business running at even minimal capacity. FFCRA is scheduled to expire at the end of the 2020, though Congress could extend it.
Employers need to be aware if their individual states require additional accommodations resulting from COVID-related circumstances. It’s is also important to remember, DOL guidelines are subject to change. Of one thing we can be certain, the ongoing coronavirus pandemic is going to force employers to provide more job-protected time off. •
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.
Sarah K. Hall is an employment attorney at the Bennett Law Firm. You can reach her at shall@thebennettlawfirm.com.
