While many parents remain in limbo regarding the status of their child’s school this fall, some of your parent-employees have undoubtedly received confirmation as to whether their child will be attending full time in-person classes, full time distance learning, or a hybrid of the two. Your employees may be asking for teleworking arrangements or a period of continuous leave to stay home and care for school aged children whose schools have chosen a full time distance learning model. Other employees may request intermittent leave to care for students who will be attending school under the hybrid model, or to share parenting duties for students who will be learning from home full time. Some employees may have already taken leave when schools closed in March, and be wondering if they are entitled to any more leave.
On April 1, 2020, the Families First Coronavirus Response Act (FFCRA) went into effect. FFCRA applies to employers with fewer than 500 employees and, among other benefits, entitles eligible employees to two types of leave: EPSL (Emergency Paid Sick Leave) and EFMLA (Emergency Family and Medical Leave Act.
EPSL provides full time employees with up to 80 hours of paid leave (prorated for part-timers) for reasons associated with quarantine, COVID-19 symptoms, and the need to care for a child whose school or daycare has closed due to COVID-19. EPSL is paid at the full rate of pay when taken for one’s own quarantine or COVID-19 symptom related reasons, and 2/3 the regular rate of pay when used to care for an individual subject to quarantine or for a child whose school or daycare has closed due to COVID-19. For employees who are taking leave to care for a child, the amount of paid leave may not exceed $200 per day or $2000 in the aggregate. Once employees have exhausted their 80 hours of EPSL, between April 1, 2020 and December 31, 2020, they are no longer entitled to any further EPSL.
EFMLA is an expansion of the Family and Medical Leave Act (FMLA). Like FMLA, EFMLA provides up to 12 weeks of job protected leave per year. Employees may not take more than 12 weeks total of EFMLA and traditional FMLA combined per year. An employee who has taken 12 weeks of traditional FMLA during the period you use to measure one year may not take EFMLA until that year is up and the FMLA clock “resets.”
While traditional FMLA eligibility requirements and rights have not changed, EFMLA now provides paid leave to employees who cannot work (or telework) due to the need to care for a child (the employee’s own child, biological, adopted, foster child, stepchild, legal ward, or child for whom the employee stands in loco parentis) whose school or place of care has closed due to COVID-19. The first two of the 12 weeks are unpaid, though employees may choose (but are not required) to use PTO, vacation, sick leave (if allowed by law or policy), or EPSL to get paid those first two weeks. The remaining ten weeks are paid at a rate of 2/3 the regular rate of pay. The amount of paid leave may not exceed $200 per day or $10,000 in the aggregate. Employees may choose (but are not required) to use PTO, vacation, sick leave (if allowed by law or policy) or EPSL to supplement EFMLA to receive their full wage.
Like traditional FMLA, EFMLA provides job protected leave. You cannot terminate an employee for requesting or taking EFMLA. When an employee exhausts EFMLA or is ready to come back to work, you must restore the employee to the same or equivalent position. This means that even if you hired someone to cover for the employee on EFMLA and you do not have an open position at the time the employee is ready to come back from EFMLA, you may need to terminate or reassign an employee so that the employee who is returning from EFMLA can be restored to the same or equivalent position.
The only reason an employer could legally refuse to reinstate an employee returning from EFMLA is if the position the employee held prior to taking EFMLA was subject to layoff, and the employee would have been laid off or had his or her position eliminated even if he or she had not taken EFMLA. Here, the burden of proof is on the employer to show that the employee was not reinstated because of a layoff and not because the employee requested or took EFMLA.
Documentation and Definitions
An employee who requests EFMLA because of the need to care for a child whose school or place of care has closed due to COVID-19 must provide the employer with the name(s) and age(s) of the child(ren) to be cared for, the name of the school or place of care that is unavailable, a representation that no other person will be providing care for the child during the period that the employee will be taking EFMLA, and with respect to the employee’s inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide such care. (Note: this does not mean that an employee cannot take EFMLA to care for a child older than 14, or that an employee cannot take EFMLA to care for a younger child if a child older than 14 resides in the home. This only means that if an employee wants to take EFMLA for a child older than 14 during daylight hours, they must provide a statement that special circumstances exist. An employer may not deny an EFMLA request because an employee has a child over 14 who can “watch” the employee’s younger child. If the younger child’s school or place of care has closed, and the older child is not providing care for the younger child, the parent may take EFMLA.) A “child” can also include an adult child who has a disability and is incapable of self-care because of that disability.
School or Place of Care Closure
Employees are eligible for EFMLA when their child’s school or place of care has closed due to COVID-19. This means that, due to COVID-19, the child is physically unable to attend or be cared for by that entity. A school that moves to 100% online learning and closes its physical building is closed, and the parent of a child who attends that school can be eligible for EFMLA. An in-home daycare that shuts down for two weeks when the individual who runs the daycare must self-quarantine due to COVID-19 exposure is closed, and the parent of a child who attends that daycare can be eligible for EFMLA during the two weeks that the daycare is closed. A nanny who returns to college in the fall and is no longer available to care for the child(ren) is not a place of care that has closed due to COVID-19. A parent is NOT required to find alternate schooling or child care arrangements when the child’s usual school or place of care closes due to COVID-19 to be eligible for EFMLA. Even if there are open daycares or schools in the area that have openings, employees do not have to enroll their child(ren) in those schools or daycares. As long as the child’s original school or daycare remains closed, the parent-employee remains eligible for EFMLA.
If an employee took EFMLA starting in April when EFMLA first took effect and schools closed in response to COVID-19, those weeks may count against the employee’s EFMLA allotment, depending on your measure of an FMLA year. If you use a calendar year or rolling FMLA period, those EFMLA weeks taken in the spring will count toward the employee’s total EFMLA allotment. (If the employee has also taken traditional FMLA during that recording period, don’t forget to count those weeks toward the 12 week total as well.) If employees have been able to find child care during the summer but are looking to use EFMLA when the regular school year resumes, be prepared to notify employees of the number of weeks of EFMLA available.
If the employee and the employer agree, employees may take EFMLA on an intermittent basis. This is especially important for employees whose child(ren) may be attending schools that operate on a hybrid model, where students attend school on some weekdays, and participate in online learning from home on other days. Employers do not have to let employees take EFMLA on an intermittent basis and may require EFMLA to be taken on a continuous basis only. However, the federal Department of Labor strongly encourages employers and employees to collaborate, and an arrangement where employees continue to be present in the workforce several days a week is often far more advantageous to an employer than an arrangement in which an employee needs to be replaced completely on a short term basis.
If an employee takes EFMLA on an intermittent basis, it may be taken in the smallest increment that the employer allows. An employer may require an employee to select the days of the week on which the employee will use EFMLA, for example, which may work well for employees whose child(ren) attend school on a hybrid model and need to be home to care for their children on certain days of the week. An employer may also allow an employee to use EFMLA on an hour by hour basis, which allows greater flexibility to an employee who shares co-parenting responsibilities with another adult. This may work well for an employer who schedules employees in shifts. Ultimately the employer and employee must agree, but the DOL stresses that flexibility is important.
If an employee decides to take intermittent EFMLA rather than on a continuous, week by week basis, the employer must calculate the amount of EFMLA in the employee’s “bank.” If an employee is entitled to 12 weeks of EFMLA and plans to take that EFMLA on an intermittent basis, the employer multiplies the 12 weeks by the number of hours the employee is regularly scheduled to work in a week. The result is the number of hours in the employee’s “bank.” When the employee uses EFMLA, the employer only deducts the number of hours the employee actually uses. If the employee is regularly scheduled to work six hours on a given day and works only three hours due to child care obligations, the employer will deduct three hours from the FMLA “bank.”
Employees who have the capacity to telework may or may not be eligible for EFMLA. If the employee is able to work during the normally expected hours of work and complete assigned tasks while their child’s school or place of care is closed, the employee is not eligible for EFMLA. However, if the employee’s child care responsibilities prevent the employee from performing the necessary functions of their job, or performing them at the assigned time, the employee may be eligible for EFMLA. An employee whose tasks may be completed on the employee’s own schedule, and need not be completed at a specific time of day may not be eligible for EFMLA, if the employee can complete those tasks during times at which they are not needed to provide direct care for their child(ren).
An employee who must be present on Zoom calls or available to speak to clients during the workday, and who must also assist their child(ren) in online learning during specific times during the workday may be eligible for EFMLA. Merely having the capacity to telework does not render the employee ineligible for EFMLA. If the employee’s child care responsibilities prevent the employee from delivering in a timely fashion, the employee may be eligible for EFMLA.
Remember, in order to be eligible for EFMLA, the employee must attest that no one else is caring for the child during the period for which EFMLA is sought. If an employee’s co-parent or other adult is able to both telework and care for the child at the same time, the employee would not be eligible for EFMLA during the time that the other adult is caring for the child. However, an employee would not be ineligible for EFMLA just because there was another adult home at the time for which they sought EFMLA. If that other adult was teleworking or otherwise engaged to the point that they could not care for the child, the employee would be eligible for EFMLA.
Small employers (including nonprofits) may qualify for an exemption from providing EFMLA if providing EFMLA (or EPSL for the purposes of caring for a child whose school or place of care has closed due to COVID-19) if doing so would jeopardize the viability of the business as a going concern. Small employers are those with fewer than 50 employees, and jeopardy of the viability of the business as a going concern can be shown if an authorized officer of the business has determined that:
1. 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;
2. 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
3. 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.
If the authorized officer has determined that these factors are present, the small business is not required to provide employees with EFMLA, or EPSL for the purpose of caring for a child whose school or place of care has closed. Businesses should document their analysis of these factors, but should not submit this information to the Department of Labor for approval. Employers should not assume that because they have fewer than 50 employees they are automatically exempt from providing EFMLA. Employers should carefully analyze these factors, and consult with counsel if they have questions.
Employees are not responsible for using the “magic words” and requesting EFMLA when they need to take leave due to the closing of their child’s school or place of care due to COVID-19. Employers should be proactive, listen closely to employees’ requests for leave or change in schedules to determine whether the employee’s situation may be EFMLA-qualifying, and offer EFMLA or EPSL where appropriate. All employers must hang a poster, available from the Department of Labor, explaining FFCRA and employees’ rights, in their break room, back room, or other place where it will be visible to employees. Employers must be vigilant to protect employees’ rights to EPSL and EFMLA under FFCRA, or risk costly and complicated lawsuits. Employers should consult with counsel for all of their FFCRA, EPSL, and EFMLA questions to assure that they are complying with law and providing all employees with the rights to which they are entitled.
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