In the August 18, 2020, edition of Compliance Corner, we considered the eligibility of employees for leave under the Families First Coronavirus Response Act (FFCRA) when their child’s school has reopened but they have chosen to keep the child home on virtual learning. On Aug. 27, 2020, the DOL provided guidance on that topic and related issues by updating their ongoing FFCRA questions and answers.
As background, the FFCRA requires employers with fewer than 500 employees to provide emergency paid sick leave (EPSL), as well as expanded FMLA (EFMLA), to employees if they must take care of their children whose school or daycare is unavailable due to COVID-19.
In FFCRA questions #98 through #100, the DOL clarified that employees would be eligible for paid leave under FFCRA in the following two scenarios:
- The child’s school remains physically closed. The school year has begun remotely only. Children are not permitted to attend school in person.
- The child’s school has opened on a hybrid basis. The school is physically open every weekday. Students alternate days between attending school in-person and attending remotely from home. In other words, children are only permitted to attend school in-person on assigned days.
The employee would be eligible for paid leave under FFCRA on the days that the child is not permitted to attend school in-person if the employee is in need of leave to care for the child during that time. There must be no other suitable person available to care for the child.
Now consider a scenario where the child’s school is open and children are permitted to attend in-person. Parents are given a choice as to whether the child will attend school in-person or remotely. If the employee chooses for the child to attend school remotely due to personal reasons such as fear of contracting COVID-19, the employee is not eligible for paid leave under FFCRA. However, if the child does not attend in-person because the child is under a COVID-19 quarantine due or a healthcare provider’s advice to quarantine, the employee would be eligible for paid FFCRA leave if they need to care for the child and no other suitable person is available.
Employers should review the new guidance and revise their policies, if necessary, in order to provide appropriate leave for eligible employees.
FFCRA FAQs, Questions 98-100