Revisit FFCRA and Return to School by Ted Storer
Background
Indiana employers continue to face employment issues related to return to work, absences and benefits due to COVID-19. Many employers have returned to work without substantial restrictions, but those who serve the public – like restaurants, beauty establishments and retail stores – continue to face restrictions on the number of customers they can serve. Local governments are increasing their efforts to fight the spread of COVID-19 by requiring masks, and the Governor announced his intention to require all citizens of Indiana to wear masks in public settings.
Indiana citizens are also getting ready for school-aged children to return to school. School systems are varying their response and plans. We have seen plans to:
- Return to standard in-school education;
- Continue e-learning platforms;
- Allow to parents to choose between the two options; and
- Mandate a hybrid where the school specifies days of in-school education and days of e-learning.
So what are best practices for all employers as we consider a return to school?
Revisiting FFCRA
When the impact of the pandemic first became apparent, Congress passed the Families First Coronavirus Recovery Act (FFCRA). Remember the FFCRA? The paid leave provisions of the FFCRA are still in effect through December 31, 2020 for employers with fewer than 500 employees. Employees may take two weeks of paid leave for Emergency Paid Sick Leave (EPSL) or up to 12 weeks of leave to take care of children who are out of school under the Emergency Family and Medical Leave Expansion Act (EFMLEA).
Employees are entitled to two weeks of paid leave under EPSL if they: (a) have COVID; (b) are caring for someone with COVID; (c) are subject to a quarantine order; or (d) have symptoms and are waiting for a medical diagnosis. This two-week period is paid at 100% of their wages, up to $511 per day.
Employees with school-aged children are also entitled to leave under either the EPSL or the EFMLEA, for up to 12 weeks at 2/3rds of their wage rate or a maximum of $200 per day. Many employees needed to stay at home with their children when schools closed and went to e-learning in April of 2020. For the balance of this article, we are going to talk about EFMLEA as the primary source of paid leave for parents with school-aged children.
Is School Closed?
If schools are not closed, most commentators agree that a parent is not entitled to paid leave under EMFLEA. As part of its Q&A, the US Department of Labor stated that leave is available when instruction has moved entirely online, as the physical location of the school is closed:
- My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
Yes. If the physical location where your child received instruction or care is now closed, the school or place of care is “closed” for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” your child is still expected or required to complete assignments.
A parent who selects an e-learning option for the Fall has made a choice about the way their child/children will return to school, but the school is open. EFMLEA would not be available because the “physical location” of the child’s school is open.
If a school is partially closed due to COVID-19, EMFLEA leave may be available. If the school only has a hybrid system where in-person learning is restricted to certain days of the week (e.g., M-W-F) and is supplemented with remote learning (e.g., T-Th), EMFLEA may apply, and could result in a situation where the employee and employer should agree on intermittent leave. Again, this must not be based on the employee’s choice. Given that school districts may use a hybrid, the DOL should provide clarification on this issue.
EPSL may be available to care for a child who has been advised to stay home or otherwise quarantine because they are particularly vulnerable to COVID-19. This should require a doctor’s note. Also, if a school partially closes because of an exposure to COVID-19, and the school mandates e-learning EMFLEA would likely apply. This could apply to certain classrooms or grades if in-person instruction is not available.
What about before and after school? Many parents are facing the situation where their before and/or after school care is no longer available due to COVID-19 related reasons.
The DOL described a place of care to include before or after school programs. If those programs close or have reduced capacity, or if a regular childcare provider is no longer available, EMFLEA will likely be available. A childcare provider includes individuals paid to provide child care as well as family members. We have seen in the Spring situations where a child normally cared for by a grandparent has no care because of health concerns for the grandparent. This situation may well re-occur this Fall.
Employees do not have an affirmative obligation to seek alternative childcare arrangement, regardless of how practical that could be. Forcing an employee to seek childcare alternatives could give rise to an interference claim in a lawsuit.
What to Do
All employers should revisit the DOL’s webpages on the Regulations Guidance https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave and the Q&A guidance.
Employers should revisit their absence records to determine if employees have any time left under either the EPSL or EFMLEA. Any absences after the effective date of April 1 could have (and maybe should have) been paid leave. Any leave granted before April 1 was on the employee and subject only to the employer’s own policies.
Employers may want to consider intermittent leave or remote working arrangements.
Intermittent Leave. An Employer and Employee can agree to use EPSL or EMFLEA on an intermittent basis. This may be important when schools offer an alternating schedule of in-school learning and e-learning at home. Intermittent leave doesn’t practically work within the EPSL because any leave is to be taken within fourteen days. However, the EMFLEA can be implemented with any individual situation to provide daily or weekly coordination of benefits with an employee.
Remote working. Employers may need to determine if employees who need to stay at home can work remotely. Working remotely is neither an absence under the FFCRA or a circumstance allowing for unemployment.
Any arrangement for intermittent leave or remote working should be documented. It should also include the employer’s expectations for performance.
Employers should document the need for FFCRA leave. An employer should understand the need for the leave to understand whether it is actually covered by the FFCRA, and which type of leave applies, either EPSL or EFMLEA. Once the need for leave is established, employers should seek the documentation required. For EMFLEA to provide care for a school-aged child when the school is closed, the DOL requires a statement that
- the employee is unable to work (including remote working) because the employee is caring for the employee’s son or daughter because his/her school is closed or unavailable due to COVID-19, and no other person will be providing care for the child during the period for which the employee is requesting leave;
- The name(s) and age(s) of the child(ren) to be cared for (DOL under 18, and the IRS a statement of why a child between 14 and 18 needs parental care);
- The name(s) of the school(s) that are closed or unavailable, and a copy of the notice from the school (website or mailing) about the closure
Employers should track the time off and any benefits paid. The payments may result in a deduction or tax credit for the Employer. The employer should also monitor if any leave can be taken in conjunction with any other benefit provided. Employers should recall that the EMFLEA is an extension of traditional FMLA leave and employers should be cognizant of the combined 12 weeks of leave.
FFCRA leave expires at the end of 2020. Unless Congress amends the statute, these school based leaves will not extend into 2021, regardless of whether the COVID-19 pandemic does.
