During the beginning stages of the COVID-19 pandemic, many parents, students and even teachers had high expectations for returning to school following their regularly scheduled spring breaks. However, as the days turned into weeks and the weeks turned into months with no end in sight, parents, students and schools began to realize that a massive change in what school would look like would need to take place. As spring break season quickly passed, schools were still closed and students had to adapt to a new remote learning style of schooling and parents had to also adapt as their children were now at home full-time. Schools ended the school year without ever opening up their doors and summer ensued. Summer has drawn to a quick close and schools are beginning to issue their reopening plans. School districts are communicating options to include: fully remote learning; in-person learning with the option for students to participate in remote-learning; and certain scenarios where a hybrid of remote-learning and in-person learning takes place. To make things more complicated, parents are also working to establish their “new normal” with their employers as they are transitioning to a more remote workforce and a new, “COVID-safe” in-person workplace.
To no one’s surprise, school reopening plans are causing an uptick in anxiety and questions among employees. While all questions seem to be difficult to answer, the questions that seem to be the most difficult to answer are, “How will my child’s remote learning impact me as I am working full-time? What if I am able to work remotely, but cannot balance both working and caring for my child? Will I be eligible for leave under the FFCRA?” This is where employers need to step up to the plate and take initiative to answer their questions. It is crucial for employers to understand their obligation to provide leave applicable to covered employees under the Families First Coronavirus Response Act (FFCRA). These questions will be answered below, but first it is important to recap which employers are required to comply with the FFCRA and what it entails.
The FFCRA contains two major provisions to include: The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Under the EPLSA, certain public employers, and private employers with fewer than 500 employees are required to provide their employees with two weeks (or 80 hours) of paid sick leave to full-time employees who are:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19.
- Advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for an individual subject to a quarantine or isolation order by the government or a health care provider.
- Caring for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19.
- Experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
One exception to this rule pertains to small businesses with fewer than 50 employees who may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. To define this exemption, an authorized officer of the small business must make a determination that at least one of the following scenarios applies:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
For employers of fewer than 500 employees, and who don’t qualify for the exemption, an additional 10 weeks of family leave at two-thirds of regular wages is available under the EFMLEA to care for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19.
With the above information in mind, employers will need to be equipped with answers related to how this information may be applied to or impact employees that request leave under the FFCRA. An employer’s response will ultimately vary depending on the employee’s specific situation and the specific plans that their child’s school has laid out for returning to school in the fall. A few probable options for school reopening plans may include: the physical location of the school being fully open for in-person classes; the physical location of the school being closed completely and remote learning would continue; or the school creates a hybrid plan where the school’s physical location is only open on predetermined days of the week and remote learning to supplement the remainder of the days. So, how will these impact an employee’s ability to take leave to care for their child under the FFCRA?
Option #1 – School’s Physical Location is Open
Under the FFCRA, regulations and guidance previously issued by the Department of Labor (DOL) state that if the physical location of the child’s school is open for in-person classes, yet the employee chooses to keep their child home from school to participate in remote learning, the employee’s choice for their child to participate in remote learning would prevent the parent from qualifying for leave under the FFCRA. One caveat to this situation would be if the school’s physical location was open, however, they were operating at a reduced capacity where some students were required to participate in remote learning to comply with certain social distancing guidelines, leave under the FFCRA may apply. Keep in mind, however, that even though the physical location of the school is open and EFMLA is not available, EPSL may be available in the event that the child has been advised to stay home or otherwise quarantine based on a vulnerability to COVID-19.
Option #2 – School Physical Location is Closed
On the other hand, if the situation is out of the employee’s control and their child’s school closes their physical location forcing the child to continue completing assignments via remote learning, the answer then changes. In the early stages of COVID-19 when schools were closing their doors but continuing to educate students via remote learning, the DOL issued clarification that stated the school is still considered “closed”. If the school is “closed” and the employee is unable to either come in to work, or telework because of the need to care for a child that is under the age of 18, an employee is eligible to take leave under the FFCRA.
Option #3 – School Adopts a Hybrid Approach (In-person Classes and Remote Learning)
The last option pertains to hybrid school reopening plans where in-person learning may be limited to specific days of the week and fills in the gaps with remote learning when the physical location of the school is closed. Under this scenario, an employee may be eligible for leave under the FFCRA due to the fact that on the days where remote learning is provided, the physical location of the school is technically closed. Intermittent leave under the FFCRA may also be an option for employees on the days in which the physical location of their child’s school is closed. Intermittent leave may be taken in any increment of time agreed upon by the employer and the employee. Intermittent leave may also be an option if an employee’s child can no longer able to attend in-person classes due to a school’s physical location closing temporarily due to a possible COVID-19 exposure. Regardless of what the intermittent leave is taken for, documenting the amount of time an employee is off is crucial as this will count against the employee’s total leave entitlements under the FFCRA. According to the DOL, there is no requirement for intermittent leave agreements to be put in writing, however, a clear and documented approach will likely be more successful and easier to follow then a verbal agreement.
To say the very least, COVID-19 has posed huge challenges for both employers and employees. To be successful going forward, continued communication between employers and employees is going to be crucial. On top of an employers’ concern regarding potential shut-downs, the financial burden that comes with closing for extended periods of time, and the ever-changing legal landscape surrounding COVID-19, employers’ concerns regarding their employees’ health have grown as many of their employees have taken on the responsibility of being at-home educators. Although some industries and occupations lend themselves to allowing employees to work remotely, some industries do not have this luxury. Employers who have the ability to allow their employees to work remotely must continue to communicate with their employees to fully understand how school reopening plans may impact their employees’ need to take leave under the FFCRA to potentially care for their child. If leave is needed, a few best practices for employers include:
- When an employee requests FFCRA leave relating to the need to care for a child, employers must work to understand the underlying reason for the request as the reason may impact the employee’s leave eligibility.
- Track employee use of FFCRA leave carefully taking into account an employee’s total leave allowance under the FFCRA.
- Be prepared to discuss any other leave options an employee may have, if leave under the FFCRA is not applicable or available to include: FMLA or any other employer-sponsored benefit such as vacation benefits, sick leave benefits, or other paid time off benefit. In addition, if the employer has an unpaid personal leave policy the employee may be eligible under the guidelines of that plan.
- Document any schedule alterations or intermittent leave agreements and any potential performance expectations during either situation.
- Stay abreast of the continually updated guidance related to the FFCRA issued by the DOL and understand and comply with appropriate documentation and recordkeeping requirements.
For additional information on the FFCRA, please contact us at www.newfocushr.com.
Written by: Patrick McKenna, SHRM-CP