September 4, 2020

DOL Releases FFCRA Back-to-School Guidance 

On August 27, 2020, the Department of Labor (DOL) issued guidance related to time-off under the Families First Coronavirus Response Act (FFCRA) for eligible parents/guardians with children returning to school. The new regulations include the following:

  1. If a school offers both in-person and online/remote learning options and a parent chooses the latter, the parent may not take paid leave under the FFCRA. Since the school is not “closed” due to COVID-19 related issues, and is open for in-person attendance, the DOL does not consider this a qualifying reason to use FFCRA leave. However, if a child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the parent may be eligible to take paid leave to care for him or her.
  2. If a school offers a hybrid/alternating day, that is, a child’s school is open each day, but students alternate attending school in-person and participating in remote learning, parents are eligible to use FFCRA leave on the days their child(ren) are not permitted to attend school. The DOL ruled that schools are "effectively closed” to workers' children on those remote learning days.
  3. If a school begins the year remotely with the intent to evaluate the circumstances and possibly re-open for in-person learning later on, parents are permitted to take leave under the FFCRA during the remote learning period. If the school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations as outlined above.

The DOL also clarified the type of information employers must request, and document, to substantiate the need for leave. Under the FFCRA, documentation for leave requests must contain:

  1. The employee’s name;
  2. Dates for leave;
  3. The COVID-19 qualifying reason for leave; and,
  4. A statement representing that the employee is unable to work or telework due to the COVID-19 qualifying reason.

Further, documentation for leave to care for a child must include:

  1. The name(s) of the child(ren) being cared for;
  2. The name of the school, place of care or childcare provider that closed or became unavailable; and
  3. A statement representing that no other suitable person is available to care for the child(ren) during the period of requested leave.

To satisfy these requirements, employers should be flexible as to the types of documentation they will accept to substantiate the need for leave. For example, there may be publicly available documentation about school closings and openings that employees can provide, or employees may be able to share letters from their districts that outline student schedules for the fall. Where third-party documents are not available, employers may request that employees submit a written statement that the employee is unable to work due to a school closure.

Employers should also expect that employees who have been teleworking successfully for the past few months without the need for leave may now find it necessary to request leave to care for their child(ren) due to school schedules.

As we enter into the sixth month of the pandemic, employers may find some employees running out of FFCRA leave. When employees exhaust their FFCRA leave, employers will need to evaluate if there are other types of leave for which the employee is eligible, including leave required under state statutes, vacation, and paid time off benefits. Although employers have no obligation to create telework and flex-time work arrangements, they may find themselves going beyond minimum compliance requirements in order to retain their workforce. Vincent Sallan, a labor and employment attorney at Clark Hill PLC, advises “Going above what you’re required to do now – showing patience, flexibility, and being accommodating – will go a long way towards fostering loyalty among current employees, and can even help with recruiting as the economy picks up."

For additional information on DOL regulations related to FFCRA visit Families First Coronavirus Response Act: Questions and Answers.

Sources: The National Law Review, “Back to School and the FFCRA” Department of Labor, Wage and Hour Division, “Families First Coronavirus Response Act: Questions and Answers” HR Dive. “DOL: No FFCRA Leave for Families Choosing Remote Learning”

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