One question that’s been front and center for many employers as we approach fall, is how the FFCRA’s expanded FMLA (EFMLA) and emergency paid sick leave (EPSL) provisions will apply when employee’s children may or may not be going back to in-person instruction. The Department of Labor, seeking to clarify this on behalf of employers, released three new FAQs last week that are instructive.
The first FAQ (#98), discusses a hybrid learning model where students alternate between remote instruction and in-person classes. Schools implementing this approach seek to limit the numbers of students in the school building at a time to prevent the spread of COVID-19, while realizing the practical benefits that live instruction and socialization amongst peers has on children. In this situation, employees are able to take FFCRA leave on days when the employee’s child is required to stay home to receive remote instruction, but would be ineligible (barring other reasons for leave under the FFCRA) on the days when the child is able to attend school in person.
The second FAQ (#99), addresses when an employee-parent elects full-time remote learning even though the child’s school was open for in-person instruction. In this situation, because the employee is making the choice to keep the child home from school, while the school is not closed due to COVID-19, the employee is not eligible for FFCRA leave. Remember, employees are only eligible for EFMLA or EPSL when a child’s school or place of care is closed or otherwise unavailable.
The third FAQ (#100), clarifies what happens if an employee’s child’s school is originally planning to offer remote-only learning, but may transition to in-person instruction later, once COVID-19 transmission risk is mitigated. If a school is remote only to start with, the employee will be eligible for FFCRA leave because the school will effectively be closed due to COVID-19. If the school does later transition to either fully in-person or a hybrid model, then FFCRA leave is not applicable on the days when the child is attending school live.
As always, the issues surrounding COVID-19 and the guidance from the Department of Labor is fluid. If you have specific questions about whether FFCRA leave is available to an employee, please contact one of our attorneys for expert guidance.
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Written by: Janell Stanton
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