October 26, 2020

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October 26, 2020

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With Schools Reopening, Employers and Employees Must Continue to Navigate a Patchwork of Federal and State COVID-19 Leave Laws

As Fall settles in and schools reopen, many employees with children (and their employers) are breathing a masked sigh of relief. Back to school means back to work, and back to work means increased productivity and greater job stability during a time when productivity and stability are needed.

However, the reality is that not all students are back in the classroom. Some students are in school full-time; some are in school part-time and remotely learning part-time; and some are learning remotely full-time. To complicate matters further, there is a possibility that students who are in the classroom will need to return home for full-time remote learning if the student, a family member, classmate or teacher has contracted or been exposed to COVID-19. All of these factors contribute to confusion amongst employers and employees alike with respect to what protections and obligations are afforded or imposed by the myriad of leave laws.

The federal Families First Coronavirus Response Act (FFCRA) was passed in the early days of the pandemic to stymie the spread of COVID-19, protect employees’ jobs, and provide some pay to those who must stay home for COVID-19-related reasons. That law requires employers with fewer than 500 employees to provide some paid sick leave or expanded family and medical leave to employees who have to quarantine, care for others with COVID-19, or care for children at home due to school closures. Exemplifying the uncertainty around application of the FFCRA, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued 97 Frequently Asked Questions between the date the law was signed on March 11, 2020 and August 26, 2020. On August 27, 2020, with the school year descending upon a confused and beleaguered population, the WHD added questions 98-100 to its FFCRA Frequently Asked Questions to further address school-related concerns, including whether parents are eligible for paid leave if their child’s school:

  • only partially reopens;

  • opens but parents choose remote learning; and

  • offers only remote learning but may reopen for in-person attendance at a later time.

Among other things, FAQs 98-100 clarify that employees are eligible for paid leave under the FFCRA only when schools are not closed to their children. Employees who choose remote learning when school is open are not eligible for FFCRA paid leave.

Then, on September 11, 2020, the WHD published a new temporary rule regarding FFCRA paid leave, which revises and clarifies the guidance provided by the initial rule that was struck down by the Southern District of New York. Among other things, the new rule:

  • narrows the definition of “health care provider” to include only employees who are health care providers under the FMLA and those providing diagnostic, preventive, treatment, and other necessary patient care services;

  • affirms that leave can only be taken when employees have work available from which to take leave and applies the work-availability requirement to all FFCRA qualifying reasons for leave;

  • affirms that employees must obtain their employer’s consent to take intermittent FFCRA leave;

  • clarifies that employees should provide documentation to support their FFCRA leave to their employers as soon as practicable; and

  • clarifies that employers can require employees to provide notice for EPSL only after the first day of leave taken and notice for EFMLA as soon as practicable.

As if the FFCRA and its related, ever-changing guidance were not difficult enough for employers and employees to digest and follow, several state and local jurisdictions have their own coronavirus-leave-related laws that covered employers must also follow. For example, numerous counties and cities in California have passed ordinances requiring employers with 500 or more employees to provide up to 80 hours of paid sick leave, thus ensuring that nearly all employers (even those not covered by the FFCRA) provide some form of paid leave for COVID-19-related reasons. By way of further example, on September 11, 2020, Oregon’s Bureau of Labor and Industries issued a permanent rule allowing employees to take paid sick leave under the Oregon Family Leave Act (OFLA) if their child’s school or child care provider has been closed due to a statewide public health emergency. These are but a few of the jurisdictional-specific laws that may compliment, supplant, or interact with the requirements of the FFCRA.

Considering the FFCRA, the numerous state and local jurisdictions with their own leave laws, and the pace at which those laws are developing, employers should continue to monitor all leave laws that apply to them and consult with legal counsel to ensure compliance with those laws.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 272



About this Author

J. Marshall Horton, Andrews Kurth, Discrimination Lawyer, Employer Rights

Marshall focuses his labor and employment practice on representing employers in litigation involving Title VII, Age Discrimination in Employment Act ("ADEA"), Americans with Disabilities Act ("ADA"), Family & Medical Leave Act ("FMLA"), Fair Labor Standards Act ("FLSA") (single plaintiff and collective action), National Labor Relations Act ("NLRA"), Operational Safety and Health Administration ("OSHA"), Sarbanes Oxley and related retaliation issues. Marshall's practice includes involvement in federal and state administrative actions and investigations with agencies...

Robert T. Dumbacher Labor & Employment Attorney Hunton Andrews Kurth Atlanta, GA

Bob’s practice focuses on representing and advising employers in complex labor relations and employment planning and disputes, including trade secrets/non-compete disputes and wage and hour issues.

Bob has obtained numerous positive results in litigated matters, including large-scale labor relations matters and restrictive covenants disputes, one of which was the groundbreaking relief under Georgia’s recently-passed Restrictive Covenants Act. Bob believes it is important for employers to proactively think about how to avoid or mitigate the risks of litigation and works closely with clients on these issues. He prides himself in being extremely responsive to client needs.

Bob also enjoys working with businesses and individuals to help them reach their goals on transactional matters without the need for litigation or excessive adversarialism. Bob is a member of the State Bar of Georgia, Labor and Employment Law Section and the Atlanta Bar Association. He is admitted to practice before the US District Court for the Northern District of Georgia, US Courts of Appeals for the District of Columbia, the Second Circuit, the Seventh Circuit and the Eleventh Circuit, and the Georgia Superior Courts.

Bob volunteers with the Pro Bono Partnership of Atlanta and other organizations. He is a contributing author to the Hunton Employment & Labor Perspectives blog.

Relevant Experience

  • Regularly represents clients before the National Labor Relations Board, including prosecution and defense of unfair labor practice charges. Experience also includes litigating a compliance proceeding in which back pay award and related damages of over $50 million was sought.
  • Counsels clients subjected to union organizing campaigns and coordinated corporate campaigns. Has counseled clients in several industries to successful results in several union organizing campaigns conducted under National Labor Relations Board’s expedited election rules.
  • Handles appeals of agency rulings, including those from the National Labor Relations Board. Has successfully participated in four successful appellate actions including Board rulings, including two as lead counsel.
  • Provides in-person training to clients on labor relations issues.
  • Represents clients at labor arbitrations and in collective bargaining negotiations.