School is Back in Session, But Are Employees? Navigating the FFCRA in the Midst of Schools Reopening

Summer is coming to end, but not all students are heading back to the classroom. Many parents are facing the decision of whether to send their children to school in-person, enroll them in remote classes, change to a home-schooling model, and/or figure out how to balance limited school schedules. On August 27, 2020, the U.S. Department of Labor published updates to the Families First Coronavirus Response Act (FFCRA) FAQs to address questions about eligibility for paid leave under the FFCRA. Below, we outline the most significant pieces of guidance for employers.

Three new FAQs are included on the site and outlined below. In addition, however, we remind employers that if the employee has already exhausted their FFCRA leave they would not be entitled to additional leave just because a new school year is beginning.

1. Employee’s child is back to school on a hybrid basis (partial in person learning and partial remote learning): An employee would be entitled to take paid FFCRA leave on the days in which the employee’s child is not permitted to attend school in person, and must instead engage in remote learning, as long as the employee is actually caring for their child during the time and no other suitable person is available to do so. Under the FFCRA, the DOL notes that the “school is effectively ‘closed’” to the employee’s child “on days that he or she cannot attend in person” and accordingly employees may use FFCRA on their child’s remote-learning days.
2. Employee’s child is provided with the opportunity to have in person learning, but the employee has chosen to participate in a 100% remote learning schedule: An eligible employee is not entitled to take any paid FFCRA leave as the school is not “closed,” but instead is “open for [the employee’s] child to attend, but the employee has “chosen for the child to remain home.”
3. Employee’s child is provided with the opportunity to have a hybrid education (partially in person and partially remote), but the employee has chosen to participate in a 100% remote learning schedule: An eligible employee is entitled to take paid FFCRA leave on the dates in which the child are required to learn remotely (if the employee is actually caring for their child during this time and no other suitable person is available to do so), but would have to take unpaid leave on the dates in which the school is open for in person learning but the employee has opted to continue with remote learning.
4. Employee’s child is back to school on a 100% remote basis: The employee is eligible for paid leave under the FFCRA if the employee is actually caring for their child during the time and no other suitable person is available to do so.

Employers are set to face new challenges that they will need to navigate not only at the start of the school year, but also as the semester continues and new outbreaks, schedule changes, and other issues arise. Please contact Tawny Alvarez or another member of Verrill’s Employment & Labor Group if you have questions regarding how the reopening of schools will impact your business specifically.