Late last week, the U.S. Department of Labor updated its guidance on emergency leave benefits under the Families First Coronavirus Response Act (FFCRA) to address leave eligibility questions related to childcare issues presented as schools prepare to welcome students back (in some fashion). https://www.dol.gov/agencies/whd/pandemic/ffcra-questions As the start of the school year fast approaches, employers are being inundated with leave requests from employees faced with ever shifting school opening plans. Eligibility for paid emergency sick leave and/or emergency FMLA where an employee is unable to work or telework to care for a child whose school is closed can mean up to 12 weeks of an employee’s absence. School districts are doubly challenged – finding themselves in the unenviable position of not only having to develop reopening plans in a very uncertain landscape, but also dealing with the same challenges faced by other employers as a result of staff requests for leave to deal with their own child care issues.
In its three new FAQs (#s 98, 99, and 100), the DOL addresses leave eligibility under various school re-opening models, ranging from fully in-person to fully remotely learning, and a variety of hybrid learning plans that fall somewhere in the middle.
First, in the variety of hybrid models, where schools alternate days between remote and in-person learning, leave under the FFCRA is available only on remote learning days. (See FAQ #98) Second, if a parent has a choice between opting in to in-person or remote learning for their child, and chooses remote learning, leave under the FFCRA is not available. (See FAQ #99) Lastly, where the school starts classes remotely, but advises it may switch to an in-person or hybrid model later in the year as circumstances are re-evaluated, leave under FFCRA is available during the time school is providing entirely remote learning, but would not be available later if the school switches to in-person learning. (See FAQ #100)
While the DOL may have provided some clarification on FFCRA eligibility in these circumstances, employers should remember there may be other federal or state laws that could apply. Further, the uncertainty brought on by COVID-19 is likely to continue for the foreseeable future and employers will likewise need to continue to find ways to balance flexibility with operational needs. The Labor and Employment attorneys at Berchem Moses are here to help employers navigate these unprecedented challenges.