Date: September 4, 2020

COVID-19 has redefined the term “back to school” this year. On August 27, 2020, the Department of Labor (“DOL”) Wage and Hour Division updated is Guidance and added FAQs 98-100 to address employer and employee questions as schools implement remote, in-person and combined learning options.

The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, part of the Families First Coronavirus Response Act (the “FFCRA”), applies to employers with fewer than 500 employees and to leave taken between April 1, 2020 and December 31, 2020. FFRCA provides eligible employees with both up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave (10 of which are paid) if an employee needs to “care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”

According to the DOL, the FAQS “issued” specifically address “qualifying for paid leave when a child attends a school operating on an alternate day basis; a parent chooses remote learning when in-person instruction is available; and a school begins the year with remote learning but may shift to in-person instruction if conditions change.”

Children with Alternating or Hybrid Attendance (FAQ 98)

Employees with a child who attends a school that operates on an alternate-day or other hybrid schedule, may take paid leave under the FFCRA on the days that his/her child “is not permitted to attend school in person” and must participate remotely instead provided that no other suitable person is available to take care of the employee’s child. For the purposes of the FFCRA, the “school is effectively closed” on the days when the employee’s child cannot attend.

Employees Who Choose Remote Learning Over In-Person Attendance (FAQ 99)

If the school provides both in-person and remote learning options at the parent’s election, and the employee chooses the remote option due to COVID-19 concerns, the employee is not entitled to paid FFCRA paid leave. The rationale is that the school is, in fact, open. However, if the child is under a quarantine order or medical directive to self-isolate the employee may be eligible for paid leave if no other adult is available to care for the child.

Children with Remote Learning Option Only but Subject to Change (FAQ 100)

If the school announces that the school year will start out remotely due to COVID-19 concerns, but may open later in the year, the employee may take paid leave under FFCRA while the school remains closed. Later, if the school reevaluates its decision and decides to open, the availability of FFCRA leave “will depend on the particulars of the school’s operations” as discussed in FAQ 98 and 99.   

If, prior to the start of the school year, an employee has already exhausted his/her FFCRA leave, the employee is not entitled to additional leave merely because a new school year is beginning. Finally, as stated above, FFCRA leave obligations remain in effect until December 31, 2020 unless extended by Congress. As such, any “replenishment” of paid leave, whether to address school-related issues or otherwise, is a matter for Congress.

The foregoing information is current as of the date published. For up-to-date information, please be feel free to contact us.