As we previously reported, the Families First Coronavirus Response Act (FFCRA) provides that covered employers (generally, private employers with less than 500 employees) must provide two weeks (up to 80 hours) of emergency paid sick leave to all employees and up to an additional 10 weeks of paid expanded family and medical leave to employees who have been employed for at least 30 days for a variety of COVID-19 related reasons.
The Department of Labor (DOL) recently offered additional guidance regarding when employees may be eligible for paid leave under the FFCRA when caring for children who are virtually learning. Basically, the DOL clarified when it considers a child’s school or place of care “closed” such that employees may be entitled to FFCRA leave when the school is operating wholly or partially remotely.
Are employees eligible for FFCRA leave when in-person instruction is available? No.
If an employee’s child’s school provides an option between in-person or remote learning and the employee elects remote learning for any reason, the DOL has indicated that the child’s school is not “closed” due to COVID–19 related reasons and FFCRA leave is not available for the employee. Note, however, that if the employee’s child is under a quarantine order or has been advised by a healthcare provider to self-isolate, the employee may still be eligible for FFCRA leave in that context.
Are employees eligible for FFCRA leave when online instruction is mandatory? Yes.
If the school has moved entirely to online or remote instruction, the school is considered “closed” due to COVID-19 and an employee may be entitled to FFCRA leave as long as the employee “need[s] the leave to actually care for [his or her] child during that time and only if no other suitable person is available to do so.”
Are employees eligible for FFCRA leave when a school offers a hybrid learning model? Yes, on the virtual learning days only.
If the school operates a hybrid model, such as rotating days/weeks where students are required to attend virtually, the school is considered “closed” for FFCRA leave entitlement purposes on the days the child is instructed to remain at home for virtual learning.
What does this mean for employers?
Employers must consider the circumstances of each employee’s request for FFCRA leave to care for children whose schools are implementing total or partial virtual instruction models.
For more information on the FFCRA compliance, please contact the attorneys at York Bowman Law, LLC.