On August 27, 2020, the Department of Labor issued several updates to their “Frequently Asked Questions” concerning the application and enforcement of mandatory leave under the Families First Coronavirus Response Act (FFCRA). With school starting, the timing of the updates proved very useful as the DOL sought to address questions surrounding the entitlement of leave for an employee to care for their child. Specifically, the DOL addressed situations when the child’s school is operating on a hybrid-attendance model, when the employee-parent opts for remote learning, and when a school is operating on a remote-learning model only.
As a refresher, under the FFCRA an employee may be entitled to leave under both the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (eFMLA) if an employee is unable to work or telework in order to care for the son or daughter whose school or place of care has been closed for reasons related to COVID-19. As schools begin to reopen, there has been much debate on the meaning of “closed” when schools are operating on a hybrid-attendance model or solely remote learning.
When an employee’s child’s school is operating on a hybrid-attendance model, meaning that the school is open each day but students alternate between in-person and remote learning, the DOL confirmed that an employee is entitled to leave for days when their child is not permitted to attend school in person and must do remote learning. The DOL states clearly that “[f]or 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.” Therefore, an employee may take FFCRA leave for those days.
In situations where the school offers the choice of in-person learning or a remote learning alternative, and the employee chooses to put their child in remote learning only, they are not entitled to leave under the FFCRA. The DOL concluded that 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.
The DOL did reiterate that an employee may be entitled to leave to care for their child who is at home due to an isolation or quarantine order from a healthcare provider.
Lastly, the DOL addressed situations where the school is on a remote learning basis only, with no option of in-person learning, but may open at a later date based on local conditions. In those situations, the DOL concluded that for the purposes of the FFCRA, the school is closed, and an employee is entitled to leave under the FFCRA. The DOL noted that when the school does reopen, an employee’s eligibility for leave would be subject to the particulars of the school’s operation.
Should you have any questions regarding the FFCRA or how COVID-19 continues to affect the workplace, please contact the Nevada Association of Employers at info@nevadaemployers.org or (888) 398-8092.
