Julie A. Aquino, Esq., Campbell Durrant, P.C. | August-September 2020
Working and parenting in 2020 is no easy task. Neither is keeping up-to-date with U.S. Department of Labor’s (DOL) FAQs regarding employee leave under the Families First Coronavirus Response Act (“FFCRA”). When Congress passed the FFCRA in March 2020, it was reacting quickly to the pandemic and immediate school closures. Congress did not envision in March that school districts nationwide would be facing difficult decisions in August about how to return to school. In its August 27, 2020 FAQs, the U.S. DOL provided the following guidance regarding return to school and application of leave under the FFCRA. A full copy of the DOL’s FFCRA FAQs is available on the DOL’s website.
- Hybrid Instruction. Where a school offers hybrid instruction (in-person on certain days and remote learning on other days), leave under the FFCRA is only available on the remote learning days and only if no other suitable person is available to provide care for the child. The DOL considers schools to be “closed” for purposes of the FFCRA on days when children cannot attend classes in-person. (See DOL FAQ 98).
- Choice Between Remote and In-person Instruction. Where a school provides parents a choice between in-person instruction and remote instruction, parents who choose remote learning are not eligible for leave under the FFCRA because in-person instruction was available, i.e., the school was not “closed.” However, if a child is not in school due to a quarantine or isolation order, including an order from a health care provider, the employee may be eligible for up to eighty (80) hours of emergency paid sick leave under the emergency sick leave provision of the FFCRA. (See DOL FAQ 99).
- Transitions later in the school year. If a school transitions from remote learning to in-person instruction later in the school year, FFCRA leave will no longer be available because the school is no longer “closed.” If a school transitions from remote-only to a hybrid model, employees can use FFCRA leave only on remote instruction days. (See DOL FAQ 100).
The U.S. DOL has been filling in the gaps since the FFCRA was passed in March to address questions that Congress did not envision or address at the beginning of the pandemic. The DOL’s three new FAQs regarding return to school provide the most recent guidance from the DOL. As a reminder, unless extended by Congress, leave under the FFCRA will expire on December 31, 2020. Campbell Durrant can provide your organization with forms for your employees to complete, including an affidavit for school closure leave, so that your organization can obtain the necessary information to grant or deny FFCRA leave requests.