From time to time, Keane & Beane, P.C., issues Legal Alerts pertaining to developing legal issues of interest to our clients. On August 27, 2020, the United States Department of Labor (“USDOL”) updated its guidance to address an employee’s entitlement to take leave under the Families First Coronavirus Response Act (“FFCRA”) in situations where the employee’s child’s school is operating on a fully remote and/or hybrid basis. The updated guidance was issued as three (3) new questions and answers in the USDOL’s Frequently Asked Questions (“FAQ”).
The USDOL’s updated FAQ can be found here. The new questions and answers from the updated FAQ are also listed below, your convenience.
FAQ 98. My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.
FAQ 99. My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.
Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.
FAQ 100. My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?
Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.
Impact of the Updated Guidance
The updated guidance confirms much of what was already known with respect to an employee’s entitlement to utilize leave under the FFCRA due to his/her child’s school being closed. However, the updated guidance is notable for a few reasons. First, the guidance ratifies the intermittent use of leave under the FFCRA when taken due to the employee’s child’s school being closed. As you may recall, in a prior Legal Alert released by this office, we discussed a recent New York Federal District Court decision, which struck down certain provisions of the FFCRA regulations, including a provision which required employer consent in order for employees to use leave under the FFCRA on an intermittent basis when taken due to school closures or the loss of childcare caused by COVID-19. It was anticipated that the USDOL might appeal the decision, staying its effect. However, with this updated guidance, even if the USDOL appeals, employees will continue to be entitled to utilize leave under the FFCRA on an intermittent basis when taken due to their children’s schools being closed, without regard to employer consent.
Second, the updated guidance suggests that an employee whose child is attending a school operating on a hybrid schedule is only entitled to utilize leave under the FFCRA on those days, or during those times, when he/she is scheduled to receive instruction remotely, and not on those days or at those times when they are scheduled to attend in-person. As such, the updated guidance indicates that an employee whose child is attending a school operating on a hybrid schedule would only be eligible to utilize such leave on an intermittent basis.
Third, the updated guidance also indicates that an employee’s eligibility to continue to take leave under the FFCRA can be affected by changes to his/her child’s school’s manner of operation. As such, an employee who has been approved to utilize leave under the FFCRA because his/her child’s school is operating on a fully remote or hybrid basis, may lose eligibility to continue such leave if the school reopens fully to all students during the period of the approved leave.
Consult Counsel Regarding Specific Questions
If you have any questions or concerns regarding the updated guidance, this Legal Alert or require further assistance with this topic, please contact one of our Education Law Attorneys.