The return to school this academic year will be much different as a result of COVID-19. While some schools will return to the classroom, others will start with distance learning or take a hybrid approach that combines some in-class instruction with some distance learning. For employers, these different approaches can raise questions about whether impacted employees will be entitled to paid leave to care for their children. Here we address seven scenarios to consider this back-to-school season.

Federal Law:

Effective April 1, 2020 through December 31, 2020, the Families First Coronavirus Response Act (FFCRA) requires employers to provide emergency paid sick leave (EPSL) and public health emergency leave (PHEL, also known as Expanded FMLA) to employees.

EPSL:

Employees are entitled to use up to 80 hours of EPSL when, among other reasons, they're unable to work (or telework) because they are caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.

PHEL/Expanded FMLA:

Eligible employees may use up to 12 weeks of PHEL/Expanded FMLA to care for their child under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency. The first two weeks may be unpaid, but the employee may elect to substitute any accrued paid leave, including EPSL, during this period. After the first two weeks of leave, employees are entitled to paid leave. To be eligible, the employee must work for the employer for at least 30 calendar days prior to the leave.

Small Employer Exemption:

Employers with fewer than 50 employees may qualify for exemption from the requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed if it would jeopardize the viability of the business. To claim exemption, the business must meet very specific criteria (see DOL Issues Rule Implementing Paid Leave Law). The following scenarios assume that the employer doesn't qualify for the small employer exemption.

Scenario #1: The child's school has taken a distance-learning-only approach.

If the physical location where the child received instruction or care is closed, the school or place of care is "closed" for purposes of FFCRA leave. This is true even if some or all instruction is being provided online or whether, through another format such as distance learning, the child is still expected or required to complete assignments. Therefore, employees would generally be eligible for FFCRA leave if their child's school has taken a distance-learning-only approach and they are unable to work or telework as a result.

Scenario #2: The child's school has taken an in-classroom-only approach.

If the child's school remains open with an in-classroom-only approach, the employee wouldn't be eligible for leave under the FFCRA to care for a child whose school or place of care is "closed," but it is possible the employee may be eligible for paid leave under state or local law. For example, if the child has a condition that puts them at higher risk from COVID-19 and a healthcare provider advises they avoid in-classroom learning, the employee may be entitled to paid leave under some state and local rules. Check your state and local requirements for details.

Note: Employers covered by the Family and Medical Leave Act (FMLA) or a similar state law should also determine whether the employee would be entitled to unpaid leave under those laws if the child has an underlying condition.

Scenario #3: The child's school takes a hybrid approach with some in-classroom days and some distance-learning days.

In regulations issued on April 1, 2020, the DOL took the position that employees may use FFCRA leave intermittently (in separate blocks of time due to a single qualifying reason) but only if the employer agrees to it. However, the position that intermittent leave requires employer approval is being challenged in court, and at least one court has ruled against the DOL's position. To err on the side of caution, employers may want to agree to intermittent leave whenever reasonable. In the scenario above, employees would be able to take FFCRA leave on the distance-learning days if they are unable to work or telework on those days. Additionally, employees may also be entitled to paid leave under state and/or local rules or unpaid leave under the federal FMLA or state FMLA depending on the circumstances.

Scenario #4: The child's school gives parents the option to choose in-classroom or distance learning.

Since the school remains open to the child, the employee may be ineligible for FFCRA leave if they are given the option of in-classroom or distance learning and choose the latter. However, to date, the DOL hasn't directly addressed this situation. Therefore, employers may want to discuss such a scenario with legal counsel.

Note: The employee may be entitled to EPSL for another qualifying reason. For example, if a healthcare provider advises the child to self-quarantine because of concerns related to COVID-19, the employee would be entitled to EPSL to care for the child.

Scenario #5: An employee used two weeks of unpaid PHEL/Expanded FMLA in the Spring and now wants to use paid FFCRA leave in the Fall.

The employee would generally be entitled to up to 80 hours of EPSL and up to ten weeks of paid PHEL/Expanded FMLA.

Scenario #6 The school is taking a distance-learning-only approach, and while the employee was able to work from home in the Spring, they now want FFCRA leave in the Fall.

The fact that the employee has been teleworking despite having their child at home doesn't mean that the employee is ineligible for FFCRA leave. For example, the employee may not have been able to care effectively for the child while teleworking or, perhaps, the employee may have made the decision to take paid leave so that the employee's spouse, who isn't eligible for any type of paid leave, could work or telework. To confirm eligibility, employers may require that the employee provide the qualifying reason they are taking leave, submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation outlined in FFCRA regulations.

Scenario #7: An employee has someone else at home who takes care of the child, but the employee still requests FFCRA leave.

In regulations issued on April 1, 2020, the DOL said employees may take FFCRA leave to care for their child only when they need to, and actually are, caring for their child and they are unable to work or telework as a result. Generally, an employee doesn't need to take such leave if another suitable individual, such as a co-parent, co-guardian, or usual childcare provider, is available to provide the care the child needs. However, under some state and local laws, employees may be entitled to paid leave even if there is another suitable person at home to watch the child.

Conclusion:

Understand all federal, state, and local leave laws applicable to your business. In the absence of a specific requirement, employers can consider options to help parents meet their family's needs, such as flexible schedules and work from home arrangements, or back-up childcare.