As we head into the second half of August, many of our kids are heading back to school.
Or maybe they’re not.
Full day in-person classes? Or perhaps hybrid? Semi-hybrid? Remote? Home school? Dropping out?
The possibilities are endless.
With some version of school starting up in a neighborhood near you, employers will face challenges as potentially significant numbers of employees will be called away from work to attend to parental duties, since many of their children are shuffled into more remote learning this fall due to the COVID-19 pandemic.
And my phone is ringing regularly with questions about how employers should properly 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. Given the groundswell of questions, I thought I would hit these questions head on here.
Quick Reminder: While many employers are not covered by laws that provide leave to employees who need to care for their children when their school or child care is closed, the FFCRA requires employers with fewer than 500 employees and most public employers to provide up to 12 weeks of leave to eligible employees in the event of school or child care closures. Still, even larger employers may be subject to state and local laws that protect employees in these instances. In other words, you may want to read along.
Q. Eligible employees can take FFCRA leave if they are unable to work or telework due to a need to care for their child whose school or place of care is closed due to COVID-19 related reasons. How do we know if a school is “closed”?
A. If the physical location of a school where a child receives instruction closes and moves online – where children are expected to attend school remotely and complete assignments at home – then it is considered “closed” for purposes of the FFCRA (see FAQ #70), and employers are required to provide leave to eligible employees. Employees still must provide an explanation for the reason for leave and provide documentation to support their leave request, but I will cover that later.
Q. Ok, that’s easy enough. But many schools are moving to a “hybrid” model where students are split into groups – for instance, one group attends school in-person on Mondays and Thursdays, and the other group attends in-person on Tuesdays and Fridays. When they are not in school, students attend school remotely. Can an employee take FFCRA when the child is attending school in-person and remotely?
As the DOL has made clear, if a school or child care is open to some students, but not to the employee’s child (due to a hybrid model or other COVID-related reasons), the school or childcare provider still is considered “closed” to the student who is unable to attend in-person. As a result, the employee may be eligible to use FFCRA leave when needed to care for children at home due to a “hybrid” model under which students physically go to school a few days each week and attend remote learning on the other school days. As to those days when the employee’s child is attending school in-person, FFCRA would not be available.
Q. Sure, I hear you. But what if the school offers both an in-person option and a remote learning option, and the parent chooses the remote option? Can they take FFCRA leave for any or all of this time period?
A. This is getting a bit tougher. The DOL has not definitely addressed whether an employee can take FFCRA leave in situations where the employee has voluntarily chosen remote learning as opposed to his or her child physically returning to school, but based on the language in the FFCRA, it seems that this employee would not be eligible for FFCRA leave because they had the option to return their child to school in person. In this scenario, the school is not considered “closed” due to a COVID-19–related reason.
Use of Intermittent Leave and Scheduling Arrangements
Q. May an Employee Take FFCRA Leave Intermittently to Care for a Child Whose School or Child care is closed?
A. As a result of the hybrid scheduling above or due to the specific needs of a family, employees may very well seek leave intermittently to attend to their child. The FFCRA regulations and the DOL’s FAQ #22 make clear that leave can be provided on an intermittent basis only with the employer’s approval.
But hold on a second. If you regularly read my FMLA drivel, you’ll recall that a recent federal court decision invalidated the DOL’s regulation requiring that the employee first obtain the employer’s permission to take intermittent leave. As a result, employers must carefully review requests for intermittent leave and consult your employment counsel before denying an employee’s request for intermittent leave related to an employee’s care-giving responsibilities. In light of the above decision, employers deny intermittent leave in these instances at their own peril.
Q. One of our employees has been working remotely just fine over the summer but now wants to take leave because his kid’s school is operating remotely this fall. Can they take leave now even though they didn’t need leave last spring?
A. The fact that the employee did or did not take FFCRA leave this past spring does not mean that the employee cannot now take leave as schools resume remote learning. As the DOL explains in FAQ # 91, there may be many different legitimate reasons an employee did not take leave previously, but now seeks to do so.
Here, the DOL makes clear:
While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.
In other words, give the employee FFCRA leave in these situations.
Q. Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for my child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
A. Naturally, clients have been asking me whether they need to provide leave to an employee because of their kid’s closed school when there is ample evidence that the other parent or another caretaker is available. In FAQ #69, DOL again reminds us that leave is not appropriate in these circumstances:
You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs. See Question 20 for more details. (My emphasis)
Where the employee requests leave to care for a child whose school or place of care is closed, DOL adopts recently-issued IRS guidance by limiting EPSL and FMLA+ only to those situations where the employee must actually care for the child and no other suitable person (e.g., co-parents, co-guardians, or the usual childcare provider) is available to care for the child during the period. If another caretaker is available to care for the child, the employee is not entitled to leave.
Q. What documentation must an employee provide to support the need for FFCRA leave to care for their child in these situations?
A. If an employee has requested FFCRA leave to care for a child whose school is closed or childcare is unavailable, the employee must provide the employer (either orally or in writing) the following information:
- The date(s) for which he/she requests leave;
- The reason for leave; and
- A statement that the employee is unable to work because of the above reason.
Because the school or place of care is closed or child care provider is unavailable, the employee must also provide:
- The name of the child;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A statement that no other suitable person is available to care for the child. If the child is older than 14, the employee also must provide a description of the special circumstances that require the employee to provide care to the child
State and Local Laws
Q. Do We Need to Worry about any State or Local Laws Impacting an Employee’s right to take caregiver leave?
A. In a word, yes. Although larger employers (with 500 or more employees) are not governed by FFCRA, several states and a few municipalities have enacted or amended paid sick leave laws to account for time off due to COVID-19 related reasons. These laws and ordinances typically do not cap out at a maximum number of employees. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to larger employers not covered by the federal law. Because these laws generally provide leave in addition to any FFCRA entitlement, it’s critical that you determine how these laws impact your employees.
Be mindful of your state and local obligations.
Q. Are there any creative ideas to help parents meet their work and family obligations while remote learning remains the norm for the foreseeable future?
A. Glad you asked. As I’ve stated before, this pandemic is shining a light on the need for employers to recognize and creatively address the very delicate balance parents have both to their job and their families. In its FAQs and guidance, the DOL has encouraged employers and employees to collaborate to find solutions that meet their mutual needs. Unlike ever before, I find that employers are increasingly becoming more flexible with time off to attend to COVID-related issues, especially for employees who have exhausted all available leave.
Here are some other options:
- Adjusting schedules so that employees with care-giving needs could be shifted to account for an earlier or later start/finish time so that they can balance work-family obligations
- Temporary unpaid leave and/or temporary job reassignment
- Increased opportunities to telework
- Allowing intermittent leave to address child care issues
- Some employers have secured nanny or tutor resources that can be accessed through a workplace EAP so that employees can find the support they need
What’s working for you? What creative solutions are you implementing in order to maintain employee morale and helping your employees balance work and family commitments? I welcome your feedback so we can all get through this together.