Employers Face Leave Issues As School Year Begins
Connecticut employers face numerous questions around family and medical leave as the school year begins under a variety of models with parents struggling with child care.
Under the federal Families First Coronavirus Relief Act, employers with fewer than 500 workers are required to provide employees with paid sick leave or expanded family and medical leave for specific reasons related to COVID-19.
But employers will have to determine exactly how that plays out when an employee’s children are expected to attend school two days a week or only a portion of the day.
The FFCRA considers a school closed if it moves to online instruction or any other method that requires students to work from home.
To qualify for family leave, an employee must certify that no other capable person can care for the child.
In general, if a co-parent or the child’s usual care provider are available, a worker does not need to go on leave.
Hybrid Learning
One issue is whether an employee whose child is attending a school operating on a mix of in-class and remote learning is eligible for family leave.
While neither the FFCRA nor the U.S. Department of Labor provide specific guidance on this, CBIA HR Counsel Mark Soycher said that if a child’s in-person school program is not available to that child for all or a part of a day, or only on certain days of the week, that school program should be deemed closed to that child at those times.
And that child’s parent who must remain home to provide care would be eligible for FFCRA paid leave on those days.
An employee unable to go to work or work remotely due to child care responsibilities qualifies for leave.
That would be the case even if the school is open to in-person attendance by other children at those times, as well as if the employee’s child is attending class remotely.
An employee who is unable to go into work or work remotely due to child care responsibilities qualifies for leave—both where the child’s school is entirely unavailable/closed to that child, or only available remotely, Soycher said.
Although not explicitly addressed by the DOL, the general interpretation is that if school is available to the child on some days of the week, the school is deemed open on those days and the parent would not be eligible for FFCRA paid leave on those days.
Leave Eligibility
Extending that rationale, an employee who decides to opt for a school program’s remote learning format, declining in-person attendance that is otherwise an available, alternate choice, would not be eligible for FFCRA paid leave on those days.
To complicate the situation, DOL regulations specify that an employee must obtain the employer’s permission to use FFCRA paid leave only on certain days in the week, such as Mondays and Thursdays, or Tuesdays and Fridays.
In general, it’s best for employers to be as flexible as possible.
But a federal court in New York ruled in August that those regulations went too far in not allowing employees to take FFCRA leave for reasons that include caring for a child whose school or daycare is closed.
Based on that court ruling, employers should not be withholding approval for intermittent use of FFCRA paid leave.
Soycher said that, in general, it’s best for employers to be as flexible as possible because it shows a good faith effort to comply with the letter and spirit of the law.
Retention Issues
Equally or more importantly, he said, it will also support a positive work culture, help retain talent—and give your employees the opportunity to succeed at work and home.
An employee may also qualify for FFCRA leave if the child’s before and after school care are closed despite the child’s school still being open.
And just because an employee previously worked from home while their child’s school was closed does not mean the worker cannot take leave to care for the child whose school is still closed.
FFCRA leave is generally for children under the age of 18 but employees with disabled children 18 or older may take leave if the child’s school or place of care are closed, or care provider is unavailable due to virus-related reasons.
Other Considerations
Other things for employers to consider:
- There is no length of service requirement for employee eligibility for the 80 hours of emergency FFCRA paid leave
- Employees are eligible for 10 weeks of expanded FMLA paid leave under the FFCRA if they have been on the employer’s payroll for at least 30 days prior to the day the leave would begin
- Employees are entitled to a one-time use of 80 hours of emergency paid sick leave
- An employee who takes all allotted leave then changes jobs is not entitled to additional leave from the new employer
- An employee can only take 12 work weeks for family medical or emergency family medical leave during the employer’s calendar year
- FFCRA paid leave for child care responsibilities is at two-thirds the employee’s regular rate of pay.
- Total FFCRA paid leave for child care responsibilities is capped at $200 per day, $12,000 total
Employees requesting leave to care for a child whose school or daycare is closed or care provider unavailable due to COVID-19 must provide their employer with the child’s name, the name of the closed school, daycare, or unavailable care provider, and a statement that no other acceptable person is available to care for the child.
For more information, contact CBIA’s Mark Soycher (860.244.1900) | @HRHotline
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