November 30, 2020

Volume X, Number 335

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Closed Schools, Open Questions: FFCRA Leave and Education in a Pandemic

As schools reopen for the fall – and, in some cases, promptly shut down again – new issues have arisen for employers trying to apply the Families First Coronavirus Response Act (FFCRA) in an ever-changing landscape.

As we informed you previously, the FFCRA provides eligible employees up to 80 hours of emergency paid sick leave (EPSL) and up to 12 weeks of Emergency Family and Medical Leave Act (EFMLA) leave to care for a child whose school or primary place of care is closed as a result of COVID-19.

But as schools have switched to remote learning or a hybrid model of in-person and remote instruction, when is a school "closed" for purposes of the FFCRA? And what happens if a parent is simply uncomfortable with sending a child to school? These are just some of the questions we've been fielding recently from clients:

If a school requires remote learning, is it "closed" for purposes of the FFCRA?

Yes. Back in March, the Department of Labor (DOL) issued guidance clarifying that if a school's physical location is closed but it offers online or other "distance learning," then the school is still considered "closed" for purposes of the FFCRA. In these cases, employees may be eligible for EPSL and/or EFMLA to care for a child whose school is closed, and employers should undergo their normal process for handling, evaluating, and documenting any request for leave.

But what about employees who were able to work or telework last spring when schools were closed but now want to use leave under the FFCRA?

Yes, those employees are eligible for leave, even if they did not use any FFCRA leave last spring. The DOL is blunt on this point, stating, "The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave" to care for a child because the child's school is closed. 

While employers may lawfully ask employees to explain the changed circumstances that require them to take leave now when it was not necessary before, the DOL cautions employers that do so, as this may increase the potential that denial of leave based on that additional information violates the FFCRA. 

As a practical matter, there may be any number of reasons that an employee needs leave now, but did not last spring, and unless an employer has strong evidence that an employee is requesting leave under fraudulent circumstances, risk abounds if the employee's request for leave is denied. In short: You can ask your employee what changed, but the DOL expects that you'll take your employee's word for it. 

What if a school adopts a hybrid model and alternates between being open for in-person education some days/weeks, and requiring remote learning other days/weeks?

The DOL just issued guidance on this very issue and, as expected, it takes the position that the school is considered closed on the days it requires remote learning for an employee's child and is considered open when in-person instruction is available to the employee's child. Employees are thus eligible for paid FFCRA leave on days when remote learning is the only option available for their children.

What if a school makes in-person instruction optional, and an employee chooses remote learning for a child because the employee is uncomfortable sending the child to school?

The employee would not be eligible for leave under these circumstances because the school is open to the child, but the employee has elected to keep the child home. An analogous situation would be when an employee chooses to stay home from work because the employee is uncomfortable working in an office environment. In both cases, the reason for the requested leave falls outside the list of approved reasons for leave under the FFCRA. 

What if an employee keeps a child home for remote learning based on an underlying medical condition that makes the child more vulnerable to COVID-19?

Because the child's school is "open" to the child, the employee would not be eligible to take paid FFCRA leave to care for the child on the basis of the school being "closed."

However, the employee may be eligible for EPSL. Remember, one qualifying reason for EPSL is to care for a family member who has been advised to self-quarantine for reasons related to COVID-19. If the decision to have the child participate in remote learning rather than in-person instruction is based on the recommendation of a health care provider, then the employee may be eligible to use EPSL for these purposes, because the child has effectively been advised to self-quarantine.

What if a parent's concern isn't based on the child's health, but on the health of another household member who has an underlying medical condition?

Under these circumstances, the employee would not be eligible to take paid FFCRA leave to care for the child. The child is not subject to any self-quarantine directive or recommendation, and the school is open to the child. 

Can employees take intermittent leave to care for a child whose school has been closed?

Yes, but only with an employer’s permission. There was previously some uncertainty regarding this issue due to a federal district court decision in New York, but the DOL recently issued revised regulations for the FFCRA clarifying that employer permission is still required.

Can employees take leave to care for older children or college-age children who are learning remotely?

The FFCRA regulations state that childcare leave is available for any child under 18 years of age or any child 18 years of age or older who is incapable of self-care because of a physical or mental disability. However, the regulations also require employers to comply with Internal Revenue Service (IRS) requirements with respect to recordkeeping, and the IRS states that employees requesting FFCRA leave to care for a child over the age of 15 during normal working hours must certify that a "special circumstance" exists requiring the employee to care for the child.

This suggests that employers should consider a request from an employee to use FFCRA to care for a child, regardless of that child's age, and follow the FFCRA's procedure to obtain all information and documentation necessary to evaluate the employee's eligibility for leave. 

This sounds needlessly complicated. Is there a simpler approach to any of this?

Yes! The watchword during this crisis has been "flexibility." Many employees have successfully worked from home either full-time or part-time since March. Even as offices reopen, employers should evaluate requests from employees for a more flexible schedule with an open mind. If an employee demonstrates that they can productively work from home even when their child(ren) are remote learning, then allowing them to do so can be a simpler solution that also builds employee morale and increases employee retention.

Got it. What happens in January 2021 if schools still aren't open for in-person education?

The FFCRA is set to expire on December 31, 2020. Unless Congress extends the FFCRA, then any childcare leave would come from either employer-provided leave policies or any new state or local leave laws that may be passed in the vacuum of Congressional action. For example, Colorado recently enacted a new statewide paid sick leave law, effective January 1, 2021, that requires employers to grant up to 80 hours of paid sick leave to eligible employees during a declared public health emergency, and the reasons for that paid sick leave largely track the reasons entitling employees to EPSL under the FFCRA. 

A slew of our employees have children whose only option is remote learning. It sounds like this is going to cost me a ton of money to pay all of these employees to stay home!

Not necessarily. Remember that the FFCRA provides for a dollar-for-dollar tax credit for all sums paid by employers pursuant to the FFCRA, so complying with these payment obligations may end up costing you nothing. If you want to take advantage of these tax credits, be sure to comply with the recordkeeping requirements articulated by the IRS

Is there anything I should be doing proactively to deal with our company's obligations under the FFCRA?

At a minimum, post in a prominent place in your workplace (or email to your employees if they are working remotely) the FFCRA poster published by the DOL. Also, develop and distribute to your employees easy-to-understand FFCRA policies. Policies accomplish two purposes: First, they put your employees on notice of their responsibilities if they want to take FFCRA leave. And second, you can use the policies as a roadmap to help you navigate the statute's requirements. Finally, adopt an FFCRA request form to provide to every employee at the time leave is requested. Establishing this uniform process will allow you to demonstrate that you are treating similar situations similarly and help minimize your risk of claims under the FFCRA, as well as discrimination laws and, importantly, will help you comply with FFCRA recordkeeping requirements.

Even if the FFCRA goes away, issues employers are contending with now will not. Employers would be wise to consider creative or more long-term solutions. 

© 2020 Much Shelist, P.C.National Law Review, Volume X, Number 260
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About this Author

Sheryl Jaffee Halpern, Much Shelist Law firm, Labor Employment Attorney
Principal

Sheryl Jaffee Halpern, chair of the firm's Labor & Employment group, helps employers make important decisions about their employees in a way that is designed to minimize risk. counsels clients on a wide range of employment matters, providing clear, direct guidance designed to promote compliance with the law, while remaining cognizant of the practical workplace realities her clients face. She counsels employers on a wide range of employment matters, providing clear and direct guidance that promotes legal compliance, while remaining cognizant of the practical...

312-521-2637
Matthew J. Feery, Much Shellist, Workplace termination lawyer, restrictive covenants attorney
Associate

Matthew J. Feery helps employers of all sizes develop best practices, strategies and solutions to promote compliance with federal, state and local labor and employment laws while also supporting business goals.

Matt regularly advises on matters involving hiring and termination, restrictive covenants, wage and hour requirements, discrimination and harassment, medical leaves and related issues, including matters arising under discrimination laws (such as Title VII and the ADA), wage and hour laws (including the Fair Labor Standards Act (FLSA), the...

312-521-2638
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