On August 27, 2020 the U.S. Department of Labor (“DOL”) issued new answers to Frequently Asked Questions on the portion of its website dedicated to the Families First Coronavirus Response Act (“FFCRA”). The new answers can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#98 These new answers provide guidance to employers dealing with parents seeking leave to care for school-aged children whose schools resume classes remotely.
Many school districts have opened using an “alternate day” or “hybrid” plan. Under these plans, students attend school some days in-person and other days remotely. Under the DOL’s new guidance, an employee with a student in a school district using “alternate” or “hybrid” plans is eligible for FFCRA leave on days when the child is not permitted to attend school in person. (FAQ 98) However, the employee also would be eligible for FFCRA leave on the days when the child is attending “remotely” if there is no other suitable person available to care for the child on those days. In other words, for purposes of the FFCRA, the school is considered to be “closed” on the days the student cannot attend in-person.
Some schools have given parents a choice between permitting students to attend in person or to participate in remote learning this fall. The DOL guidance states that parents of such children are not eligible to take FFCRA leave because the school is not “closed” due to COVID-19 related reasons; instead, the school is open for the student to attend. (FAQ 99) However, the DOL guidance clarifies that parents of students under a quarantine order or who have been advised by a health care provider to self-isolate or self-quarantine would be eligible for FFCRA leave.
Many other schools will begin the school year with remote-only learning due to concerns associated with COVID-19. For parents of these students, the DOL guidance indicates that such a school is considered “closed” and therefore the parent of such a student is eligible to take FFCRA leave so long as the school continues providing instruction only through remote learning. (FAQ 100) The guidance indicates, however, that if the school reopens for in-person instruction, the availability of leave would depend on the particular facts of the school’s operations. In other words, if the school returns to full or partial in-person instruction, the rules discussed above for hybrid or in-person learning will apply.
Employers should be aware of this new guidance when addressing FFCRA leave requests for child care, and should consult experienced employment counsel regarding this and state or local laws that may contain additional leave requirements relating to COVID-19 absences or child-care leave beyond that provided in the FFCRA.
Unfortunately, this new guidance comes from the DOL’s website and not through the usual promulgation of a regulation or an official interpretive Field Assistance Bulletin or opinion letter. As McMahon Berger noted in a previous post, at least one court has already struck down the DOL’s regulations interpreting the requirements of the FFCRA. Whether courts will ultimately agree with and follow the DOL’s new guidance on school closures remains to be seen.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.