as of September 2020

Questions have arisen about when and under what circumstances Expanded Family and Medical Leave ("EFML") under the Families First Coronavirus Response Act ("FFCRA") is available to employees and required of employers as schools reopen. The following provides a brief response to many of those questions. The Department of Labor ("DOL") has issued both temporary regulations and FAQ's that have been recently updated and will become effective on September 16, 2020, to address new situations, including schools opening in hybrid mode and at least one court decision raising questions about some of DOL's earlier regulations.

The revisions do not change the essential elements of the EFML requirements. Employers with fewer than 500 employees or public employers with at least one employee are required to provide up to 12 weeks of leave (consisting of 2 weeks unpaid, unless the employee uses Emergency Sick Leave (EPSL), and 10 weeks of EFML) to allow an employee to care for a son or daughter under 14 during daylight hours when the child is not permitted to attend school or childcare due to COVID-19, the employee needs the leave to actually care for the child and no other suitable person is available to do so. Any pay for childcare due to the closure of school or place of childcare, paid as EPSL or EFML, is at 2/3 pay or $200/day, whichever is less.

* Eligibility for EFML When School Reopens In Hybrid Mode: An employee is eligible to take paid leave under FFCRA (up to the maximum of 2/3 of the employees pay or $200/day, whichever is less, for up to 12 weeks) when their child is not permitted to attend school in person and must instead engage in remote learning so long as the employee needs the leave to actually care for the child during that time and no other suitable person is available to do so. For purposes of the FFCRA, the school is "closed" to the employee's child on the days that s/he cannot attend in person. (FAQ 98 and 99).

* Is Attendance on a Hybrid Basis Considered Intermittent Leave? No. Taking leave only on days when the school is closed to your child is not considered intermittent leave as "each day of closure or unavailability [of school, place of care or child care provider] is a separate reason for leave, and thus [the employee] would not need to take leave for a single reason intermittently. As such, [the employee] would not need employer permission to take leave on just the days of closure or unavailability." (FAQ 21 and 22). An employee is eligible for paid EFML leave under FFCRA on each of his/her child's remote-learning days. (FAQ 98).

* When Is Employer Agreement for Intermittent Leave Required? An example provided in the DOL FAQ is: "if [an employee's] child's school or place of care is closed or child care provider is unavailable, for an entire week due to a COVID-19 related reasons and the employer and employee agree, the employee may take EFML intermittently on Monday, Wednesday and Friday, but work Tuesday and Thursday, while another family member watches [the] child." (FAQ 22).

* Eligibility for EFML When School Reopens In Total Remote Mode: An employee is eligible to take paid EFML while the employee's child's school remains closed. (FAQ 100).

* If Remote Learning Is Selected By Parent: EFML is not available to an employee who chooses to decline to send their child to school in-person because the school is not "closed" due to COVID-19 related reasons. It is open for the child to attend, Thus, the parent who chooses the remote learning option instead of in-person learning even though the selection is out of concern that the child may contract COVID-19 and bring it home to the family does not qualify for EFML. (FAQ 99). Although not answered by the FAQ, if the school is opening in a fully remote mode and the parent has elected the remote option, the employee would presumably be eligible for EFML as the school is "closed." (FAQ 100).

The FAQs may be accessed here.

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Stoneman, Chandler & Miller LLP can help you address these recent developments. If you have any questions on the above, please do not hesitate to contact us.

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