School is Physically Closed – But Learning is On. Does FFCRA Leave Apply?
The Families First Coronavirus Response Act (FFCRA) requires covered employers – those with 500 or fewer employees – to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks (ten of which are paid) of expanded family and medical leave for specific coronavirus related issues. Included is leave for employees 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. However, what is considered “closed” for purposes of the law? What if school will resume but be completely or partially virtual?
The Department of Labor has provided an answer. If a school or place of care has moved online – where children are expected to complete assignments at home – then it is indeed considered “closed” for purposes of the FFCRA, and employers are required to provide leave to eligible employees. Employees must provide an explanation for the reason for leave; for purposes of a school or daycare closing this includes the name of the child, the name of the school, and a statement that no other suitable person is available to care for the child.
Under rules governing certain other labor laws, school is considered open and in session even if it is being taught virtually. For purposes of the FFCRA, however, an employee will qualify for leave because the physical location where the child receives instruction is closed, even where some or all instruction is being provided online.
Importantly, the IRS will consider the documentation sufficient to substantiate the employer’s eligibility for the tax credits if the documents indicate that the school is closed only physically but is still in session. The IRS has provided the following instruction with respect to the documentation needed for this type of leave request:
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
Finally, employers should take note that even where an employee has been working remotely despite having his or her child at home over the summer does not mean that the employee cannot now take leave as schools resume virtual learning. As the DOL explains, there may be many different legitimate reasons an employee did not take leave previously, but now will seek to do so. “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.”
 29 C.F.R. § 826.20(a)(v)(b).
 29 C.F.R. § 826.100(e).