FAQ: What are some FFCRA considerations now that the school year is about to begin?
The Families First Coronavirus Response Act (FFCRA) requires employers to provide emergency paid sick leave (EPSL), as well as expanded FMLA (EFMLA), to employees if they must take care of their children whose school or daycare is unavailable due to COVID-19. Absent additional guidance from the DOL, this could likely result in a diminished ability to take FFCRA leave for the coming school year. Specifically, if schools and daycare centers are open and providing in-person instruction, then employees would seemingly not be eligible for this leave if, for example, they simply did not feel comfortable sending their kids to school or daycare due to risk of contracting the virus.
As a reminder, employers with fewer than 500 employees must provide FFCRA to their employees under certain circumstances. In order for their employees to qualify for EFMLA, they must have been employed for 30 calendar days immediately prior to the day their leave would begin and they must be unable to work OR telework due to a need to care for their children under 18 years of age whose school or place of care has closed, or whose childcare provider is unavailable, for reasons related to COVID-19, among other requirements. Note that an eligible employee is entitled to up to 12 weeks of EFMLA under the FFCRA to care for a child due to school/daycare closure related to COVID-19. If the employee did not exhaust the entire 12 weeks during the spring, they may be entitled to additional time in the coming fall semester.
In order for employees to take EPSL, one or more of six specific reasons enumerated in the FFCRA must apply, including that the employees cannot work because they are taking care of their child and the school or place of care of their child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions. According to DOL regulations, EPSL can be taken for this reason only if no other suitable person is available to care for the child during the period of such leave. If this reason applies, then employees are entitled to take up to 80 hours of EPSL, regardless of how long they have worked for their employers.
So employees may be entitled to FFCRA leave when their children’s schools are closed due to COVID-19. However, if they are open and available for in-person instruction, employees would seemingly be ineligible for paid leave under the FFCRA if they simply choose not to send their children. If the school or daycare is “partially” open – so that part of the curriculum is not in-person and is instead on-line only – employees (if otherwise eligible) would seem to qualify for the FFCRA leave if they cannot work (or telework) due to needing to care for their children during said partial closure.
Please note a few caveats. Several states, like New York, expand on the leave provided under the FFCRA, such as applying this or similar leave to employers with 500 or more employees. This could mean that there are additional state requirements to provide leave that could apply to children’s school circumstances whether instruction is provided in-person or not. Additionally, a recent federal court case struck down several DOL regulations that administer and enforce the FFCRA, including a requirement that employees can take FFCRA leave only if their employers have work for them do to that they cannot do because of the reasons for the leave. This case is discussed at more length in a separate article in this edition of Compliance Corner.
We are hoping for additional guidance from the DOL on this and related matters that are not directly addressed by current guidance. In the meantime, employers should consult with counsel if they have questions concerning the application of FFCRA leave to any particular case. We will pass along any new developments as we learn them.
View this article on NFP.com.