Client Alert
September 10, 2020

BACK TO SCHOOL!

DOL Provides Guidance Regarding FFCRA Leave Related to School Reopening
The Department of Labor updated its Families First Coronavirus Response Act (“FFCRA” or the “Act”) Frequently Asked Questions to provide clarity as to when employees are eligible for FFCRA leave when their child’s school reopens in a hybrid model. 

As we informed you in our FFCRA Alert, the FFCRA requires private employers with fewer than 500 employees to provide its employees with up to 80 hours of paid sick leave (“Paid Sick Leave”) and up to twelve weeks of emergency family and medical leave (“Emergency FMLA”). The Act permits employees to take both Paid Sick Leave and Emergency FMLA when the employee is unable to work due to a need to care for their child if the child’s school or place of care is closed, or their child care provider is unavailable due to the COVID-19 pandemic. Employees are only eligible for such leave when there is no other suitable person available to care for their child.

Whether an employee is eligible for FFCRA leave when a school reopens in hybrid models depends on the particulars of the school’s operations: 

Mandatory Hybrid School Model (i.e., students alternate between days attending school in person and days participating in remote learning): Employees are eligible for FFCRA leave on days when their child is not permitted to attend school in person and instead must engage in remote learning. Therefore, parents may take either Paid Sick Leave or Emergency FMLA on each day of their child’s remote-learning, assuming the parent has such leave available.

Optional Remote Learning (i.e., parents may choose whether to have their child attend in person or participate in a remote learning program): Employees are not eligible for FFCRA leave on days when their child participates in a remote learning program if the school is open for in-person learning but the employee opts for remote learning. However, if the child must choose remote learning because they are under a quarantine/isolation order or have been advised by a health care provider to self-isolate or self-quarantine, the parent may be eligible for Paid Sick Leave to care for the child.

Employers are reminded to maintain documentation and records in accordance with our previous FFCRA Documentation & Recordkeeping Requirement Client Alert.

Employers may access the DOL’s FFCRA Frequently Asked Questions at this link: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

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If you have questions or would like additional information, please contact EGS’s Employment Law Practice Group Leader, Amanda M. Fugazy at afugazy@egsllp.com or the primary EGS attorney with whom you work.   
This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.