DOL Input on the Availability of FFCRA Leave as Employees Grapple with Various Return to Learn Scenarios

DOL Input on the Availability of FFCRA Leave as Employees Grapple with Various Return to Learn Scenarios

Posted on 09/01/2020 at 10:26 AM by Rachel Soderstrum

Labor Day weekend, sometimes referred to as the “unofficial end to summer,” is just around the corner, and with it comes another familiar sign that the transition to fall has begun: the start of a new school year. While the beginning of this particular school year is different for most, there is no doubt that children and parents across the state of Iowa are eager to get back to the school-day routine.

With schools in Iowa each taking their own approach to the Return to Learn Plan, many questions arise from the parents that are tasked with balancing work and education for their children. One of the most common questions is whether the Families First Coronavirus Response Act (FFCRA) offers any relief. Though the FFCRA and the applicability of its measures are unique to the individual family involved, on August 27, 2020, the United States Department of Labor (DOL) released guidance in the form of three new “Q&As” (#98, #99 and #100) to help answer this question.

The guidance can generally be broken down into three different categories, each of which is dependent upon which return to school approach the child’s school has chosen. The first category contemplates the alternative day or hybrid-attendance approach. Under this return to learn method, the school offers both online and in-person learning for students but allows the student to attend in-person sessions only on select days. For example, where the student attends school in person on Monday and Tuesday but completes remote/online learning on Wednesday, Thursday, and Friday. If a parent has a child attending a school using this approach, the parent is eligible for paid leave under the FFCRA on the days in which their child is not allowed to attend school in person. However, it is important to note that it is the DOL’s position that such parent must actually need the leave in order to care for their child. Additionally, it is the DOL’s position that there must be “no other suitable person” available to care for the child during that time. “For purposes of the FFCRA and its implementing regulations, the school is effectively ‘closed’ to [the] child on days that he or she cannot attend in person,” which is what allows for the paid leave to kick-in under the FFCRA.

The second category under the recently released DOL guidelines deals with the situation where the school has given the parent the option to either send their child to in-person classes or attend school remotely through an online format. Under this approach, it is the DOL’s position that if a parent chooses to keep their children home for 100% online learning, the parent is not eligible for paid leave under the FFCRA. This is because, as opposed to the alternative day approach where the school has decided to close the school to the child on certain days, under this approach, the school is open to the child every day of the week and it is the parent’s decision to have the child at home. While the decision to send or not to send a child to school may not feel like a meaningful choice to some parents, the DOL asserts that the FFCRA does extend paid leave to a parent where the decision to keep the child at home is due to the child being under a quarantine order or where the child “has been advised by a health care provider to self-isolate or self-quarantine.” Importantly, according to the DOL guidance, this extension of paid leave does not extend to the situation where the parent has determined to keep the child home for other reasons not identified in the statute.

The final category considers the circumstance where the child’s school is beginning the year remotely but plans to continually evaluate whether reopening can be managed safely throughout the semester. Under this approach to returning to learn, the parent would be eligible for paid leave under the FFCRA so long as the leave is necessary to care for the child and there is “no other suitable person” available to do so. Once the child’s school reopens, however, the availability of paid leave would need to be reassessed according to which learning plan is adopted by the school.

A few reminders about the FFCRA, in general, are important at this point. First, the FFCRA applies only to employers with less than 500 employees, including state and local government employers, subject to a couple exemptions. Second, the FFCRA provides employees with a maximum of 12 weeks of leave from April 1, 2020 through December 31, 2020 due to the closure of schools and places of care because of the pandemic. Third, the FFCRA provides employees with 2/3 of their pay for absences due to the closure of schools and places of care where the employee cannot telework, and it gives employers a tax credit for that pay. Finally, if the employer was subject to the Family and Medical Leave Act, its employees can take only 12 weeks—in total—of regular FMLA leave and FFCRA leave. Because schools closed in mid-March and stayed closed through the scheduled end of the 2019–2020 school year, and because employees’ needs for regular FMLA continued, it is important to keep in mind that many employees may have already used a good portion of the leave available to them under the FFCRA or may have exhausted it completely. Though the situation continues to be monitored, Congress has not acted to extend or expand upon the FFCRA at this time.

Like most other things in our world under the current state of affairs, the traditional marks of the end of summer and beginning of fall have a different twist this year. While parents will inevitably have to find new ways to balance the changes to work, school, and life in general this upcoming school year, the FFCRA can provide some support to those who qualify.


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