Don’t End Up in Detention: Guidance on Leave for Employees with School-Age KidsIt’s September, which for most means the beginning of fall and the start of a new school year. This school year not only looks different than those in the past, but it has also added to the stress and uncertainty facing families as parents attempt to balance work and family in this COVID-19 world. School also looks different depending on where you live – schools are starting the year with either traditional in-person learning, remote-only learning, or a hybrid of the two. Most school districts offering traditional in-person instruction also provide parents the option to choose remote learning. As parents attempt to navigate the new school year, employers should remain mindful of their obligations to provide paid leave under the Families First Coronavirus Response Act (FFCRA).

As a refresher, the FFCRA offers up to 12 weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate of pay for an employee, (who has been employed for at least 30 calendar days) that is unable to work due to a need to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. The Department of Labor (DOL) recently released additional FAQs offering insight on how employers should administer leave under the FFCRA in response to three common scenarios:  parents who choose remote learning, schools that open remotely but may open for in-person attendance in the future, and a hybrid model where in-person learning is only available part of the time.

  1. Parents Who Choose Remote Learning (FAQ # 99)
    Where in-person school is available, but a family has opted for virtual learning, the DOL has stated that employees are not eligible for FFCRA leave because the school is not “closed” due to COVID-19 reasons. Rather, the parent has chosen to forego the availability of in-person attendance for remote learning. Even if a parent chooses remote learning, however, FFCRA paid sick leave may still be available if the child is under a quarantine order or has been advised to self-isolate by a healthcare provider.
  1. Schools That Open Virtually But May Open Traditionally Later (FAQ # 100)
    This FAQ applies to school systems who have made the decision to kick off the school year with 100% remote learning, but who have stated that they will continue to evaluate local conditions and make a decision regarding in-person attendance at a later date. While the school remains closed for in-person attendance, employees are eligible for paid leave under the FFCRA.
  1. Hybrid Model (FAQ # 98)
    For the majority of hybrid school models, the school is open each day for in-person attendance. Students alternate days, however, between receiving in-person instruction versus remote instruction. Generally, students are only allowed to attend in-person on their allotted days.

The DOL’s recent guidance states that an employee is eligible to take paid leave under the FFCRA on the days when his or her child is not permitted to attend school in person and must participate in remote learning (so long as the prior requirements are met, i.e., as long as the leave is needed to actually care for the child during those days and only if no other suitable person is available). Under applicable DOL guidance, the school is effectively “closed” to the employee’s child on the days when remote learning is the only available option. In other words, this FAQ indicates that employees are eligible for intermittent paid leave for the days when their children must participate in remote learning.

While this FAQ appears fairly simple to implement, there is uncertainty as to how it affects prior DOL guidance stating that intermittent FFCRA leave also requires employer consent.  Employers should stay tuned for additional information and guidance on this issue.