Those crazy little rascals at the Department of Labor must be readers of this second-rate FMLA blog!

Last week, I published FAQs offering insight on how employers should administer leave under the Families First Coronavirus Response Act (FFCRA) when an employee requests leave because a child’s school is closed or child care unavailable. As you may recall from that post, I noted that the DOL left open some questions on issues like whether FFCRA leave is available for hybrid learning or on occasions when a parent voluntarily keeps a child home from school.

It’s as if the DOL heard our musings, as these open-ended questions are open no longer. [No they didn’t hear your musings, Jeff, they don’t read your blog!]

Late yesterday, the DOL announced the release of three new FAQs (FAQ #98-100) concerning an employee’s eligibility for FFCRA leave when a child’s school is operating on a remote or hybrid schedule. The FAQs generally explain that employees are eligible for FFCRA leave while a child’s school is closed; if the school is open for in-person learning but a parent has selected a remote option, leave may not be available, depending on the circumstances.

Hybrid Learning (FAQ #98)

In FAQ #98, the DOL addressed situations where the school provides hybrid learning, where students split their time between in-person learning and remote learning.  In these situations, the DOL confirmed that an eligible employee may take FFCRA leave on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning.

The Parent’s Choice (FAQ #99)

What if the school gives the parent a choice as to the location of the learning – in school or at home?  Put another way, what if the parent voluntarily chooses remote learning as opposed to his or her child physically returning to school, perhaps because the parents fear their child will be infected at school?  Is this employee eligible for FFCRA leave?

No, says the DOL. The employee cannot take FFCRA leave in this instance because the child’s school is not “closed” due to COVID–19 related reasons; it is open for the child to attend.

The School May Reopen Later (FAQ #100)

Finally, in situations where the school is opening the school year remotely, but may open at a later time, the DOL again confirmed that FFCRA leave is available on school days when the child is engaged in remote learning. However, if the school later transitions to exclusively in-person instruction, FFCRA leave will not be available. Similarly, as noted above, if the school moves to a hybrid learning environment, employees can use leave only on remote instruction days.

Now you know . . .