Readying for the Return: US Department of Labor Issues New FAQs Related to the FFCRA and Return to School Issues

As we have recently posted on numerous occasions, 3/17/20, 3/19/20, 3/27/20, 4/6/20, and 8/10/20, the federal Families First Coronavirus Response Act (“FFCRA”) requires most employers with fewer than 500 workers to provide paid time off for specified reasons related to COVID-19, including that (1) the employee is suffering from COVID-19 symptoms and seeking a medical diagnosis for same or is subject to a quarantine order; (2) the employee is caring for a family member subject to a quarantine or is caring for a child whose school is closed (or childcare provider is unavailable) or the employee is experiencing a “substantially similar condition” (reasons (1) and (2) are generally referred to as “Paid Sick Time” or “PST”); or (3) the employee has a bona fide need for leave to care for a child whose school or childcare center is closed due to the current pandemic or for a similar reason (reason (3) is generally referred to as “Expanded Family and Medical Leave” or “EFMLA”).

The FFCRA also sets up a system, administered by the Department of the Treasury, to reimburse those employers, through tax credits, for the cost of providing the required additional paid leave.  Employers should note that the FFCRA is presently scheduled to expire on December 31, 2020.

On August 27, 2020, the United States Department of Labor (“USDOL”) issued three (3) new FAQs related to employees’ need for paid leave under the FFCRA and, specifically, the fact that many schools will not be opening on a “normal” basis this school year.  FAQs 98-100 address some common return to school scenarios.  First, FAQ 98 poses the issue of whether an employee is entitled to FFCRA leave for days on which a child’s school is “closed” in a hybrid school situation and answers “yes.”  Finding that the school is effectively “closed” on remote days, the USDOL writes, “Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so.” (FAQ 98).

FAQ 99 addresses the impact of FFCRA leave when a school gives the option of 100% remote learning and the employee parent and student accept this option. In this situation, the USDOL establishes that FFCRA paid leave is NOT available to the employee who needs to be home with the child because the child’s school is not “closed” due to COVID-19 related reasons. However, where a school is open on a hybrid model, but the parent and student choose to be 100% remote, the employee may be entitled to FFCRA paid leave for that portion of the time when the school is closed. (FAQ 99).

Finally, FAQ 100 addresses an employee that needs to take FFCRA leave because the child’s school has begun the school year remotely. In such case, the employee is potentially entitled to FFCRA leave because the school is at least temporarily closed. Depending on when and how the school reopens, the FFCRA leave may be impacted as above. (FAQ 100).

As previously noted, as we head into Fall and the new school year while continuing to grapple with COVID-19, employers are well advised to keep updated on employee rights under the FFCRA and related laws.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.