The COVID-19 global pandemic has undoubtedly made the transition back to school unpredictable, causing stress for employers, school districts, educators, parents, and students.
As an increasing number of school districts have made the decision to refrain from introducing students back to the classroom, or to do so in a hybrid-learning format, questions arise regarding policies and procedures for employee-parents/guardians who may feel the need or desire to take time off work to be home with their students. Some districts have even reversed the decision to return and closed schools again after pods of students and teachers test positive for COVID-19.
At the outset of the pandemic, many COVID-19 leave related questions were answered by the Families First Coronavirus Response Act (FFCRA) and its subset provisions, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), which collectively apply to employers with fewer than 500 employees, and run through December 31, 2020.
Given the length of this pandemic so far, many employees have exhausted the time originally allotted by the FFCRA, causing questions and concerns with the return to school right around the corner.
The following Q&A is designed to address ongoing questions and concerns for employers and employees alike. Use these questions as a starting point to evaluate responses to your employees’ inquiries. Additional analysis and information may be necessary to fully answer all employee scenarios. For this reason, please do not hesitate to contact Brennan, Manna & Diamond, LLC to discuss further.
1. If an employee has expended all employment leave provided under the FFCRA, is their employer required to provide additional leave?
Although federal and state guidance concerning the pandemic is ever-evolving, as of right now, the leave-related provisions of the FFCRA remain in effect through December 31, 2020 and are the primary source for employment leave-related guidance stemming from COVID-19.
As such, employees who have exhausted all available leave under the FFCRA are not entitled to any additional paid leave from employment — even in consideration of new back-to-school stay-at-home requirements. However, please be advised that other federal leave laws such as Americans with Disabilities Act or the Family Medical Leave Act may apply to provide additional, unpaid leave to employees if their requirements are met.
2. If an employee has not expended all employment leave provided under the FFCRA, and their child’s school has moved to online instruction or another hybrid-model, is the school “closed” for purposes of taking leave under the FFCRA?
Yes. If a child’s school or place of education or care is physically closed as a result of the COVID-19 pandemic, the FFCRA provides that the employee-parent may take paid sick leave and/or expanded family and medical leave. This holds true even if only some of the educational instruction is being provided online or through a distance-learning environment, as long as the school’s physical location remains closed.
However, if an employee had the option to send their child to school or childcare, but opted to allow their child to homeschool or virtual school, and the physical school location remains open, then the employee is not eligible for paid leave under the FFCRA while the physical location remains open.
3. How much leave is an employee entitled to under the FFCRA for purposes of childcare during the school year when a school or other childcare provider is closed because of COVID-19?
Under the FFCRA, an employee is permitted to take paid sick leave as well as expanded family medical leave but only for a total of twelve (12) weeks of paid leave — two (2) weeks under the EPSLA and the balance under the EFMLEA.
In other words, once an employee-parent has exhausted the total twelve (12) weeks of paid leave, the FFCRA provides no additional leave to that individual — even in consideration of new back-to-school stay-at-home requirements.
4. What records should an employer gather and keep when an employee requests leave under the FFCRA to care for his/her child whose school or place of care is closed as a result of the pandemic?
When an employee requests paid sick leave or expanded family and medical leave, an employer is obligated to document the following:
- The name of the employee requesting leave;
- The term/date(s) of the requested leave;
- The reason for leave; and
- A statement from the employee that he/she is unable to work because of the stated qualifying reason.
When an employee specifically requests leave to care for his/her child whose school or place of care is closed as a result of the pandemic, an employer must additionally document the following:
- The name(s) of the child(ren) being cared for;
- The name of the school, place of care, or childcare provider that has closed or become unavailable; and
- A statement from the employee that no other suitable person is available to care for the child.
5. Is any of the paid leave provided by the employer for these reasons reimbursable?
Private sector employers that provide leave under the FFCRA for these reasons are eligible for reimbursement of the costs of the leave through refundable tax credits; however, eligibility is dependent, in part, on proper document retention as outlined above.
6. Can an employer require an employee to telework in lieu of taking paid leave under the FFCRA?
To the extent that an employee is able and/or permitted to telework while caring for a child whose school or place of care has closed because of COVID-19 related reasons, paid sick leave and expanded family and medical leave is not available, and the employer can require the employee to provide telework.
7. Can an employee take intermittent leave to care for their child under the FFCRA?
Yes. An employee is permitted to take leave intermittently to care for his/her child(ren) whose school or place of care has closed for COVID-19 related reasons.
This provision is particularly relevant for employees whose child(ren) attend school in a district that has elected a hybrid learning program (i.e. students attend in-person certain days of the week with the balance attended through distance-learning).
For example, an employer and employee can mutually agree that the employee will work in-office Monday–Wednesday and take paid sick leave under the FFCRA Thursday–Friday to care for his/her child. Any combination of days and/or hours is permitted, as the Department of Labor has repeatedly encouraged these types of flexible arrangements.
However, please note, if an employee had the option to send their child to school or childcare, but the employee opted to allow their child to homeschool or virtual school, and the physical school location remains open, then the employee is not eligible for paid leave under the FFCRA.
8. Do any small business exemptions apply to the paid sick leave and expanded family and medical leave provisions of the FFCRA?
An employer, including a religious or nonprofit organization, with fewer than 50 employees may be exempt from providing paid sick leave as well as expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business.
With that said, a small business seeking to take advantage of this exemption must first meet certain requirements outlined with the FFCRA. We recommend that employers contact us to discuss options regarding qualification for the small business exemption.
9. May an employee take paid sick leave or expanded family and medical leave to care for a child who is 18 years of age or older?
Under the FFCRA, leave may only be taken to care for an employee-parent’s non-disabled child if he/she is under the age of 18. If the child is 18 years of age or older with a disability and cannot care for him/herself due to that disability, the employee-parent may take paid sick leave and/or expanded family and medical leave to care for him/her if his/her school or place of care is closed or his/her child care provider is unavailable, due to COVID-19 related reasons, and the employee-parent is unable to work or telework as a result.
10. Can more than one parent or guardian take paid sick leave or expanded family and medical leave simultaneously to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons?
Because the FFCRA provides that an employee may only take paid sick leave or expanded family and medical leave to care for his/her child when the employee needs to, and actually is, caring for his/her child, only one parent may take leave at a time.
This is because, generally, an employee would not need to take leave if another person is available to provide care.
11. Can an employer require an employee to use his/her existing paid leave under the employer’s company policy in lieu of FFCRA leave?
Generally, paid sick leave under the FFCRA is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with paid sick leave under the EPSLA.
With that said, an employer may require that any paid leave available to an employee-parent under the employer’s policies (to allow an employee-parent to care for his/her child because of a school or place of care is closure due to COVID-19 related reasons) run concurrently with paid expanded family and medical leave under the EFMLEA. We recommend that employers allow this leave to run concurrently, but this will impact the amount the employee is paid.
12. May an employer question why their employee is unable to telework if the employee requests to take paid sick leave under the FFCRA to care for a child in lieu of teleworking, particularly if the employee previously teleworked under similar circumstances?
An employer is permitted to require that an employee provide a qualifying reason for taking leave through submission of a written or oral statement in which the employee indicates that he/she is unable to work for a qualifying reason; however, an employer should exercise caution, in pushing this issue. Oral statements should always be reduced to writing.
The fact that an employee previously teleworked despite having his/her children at home due to COVID-19 related reasons does not necessarily mean that the employee is still able to do so. The employee-parent may have legitimate reasons for being unable to telework which are protected under the FFCRA.
Prior to exercising any of the rights or limitations provided within the FFCRA or outlined herein, employers should first consult with experienced legal counsel to ensure compliance with all applicable employment-related rules and regulations. Please contact Bryan Meek at 330.253.5586 or firstname.lastname@example.org, or any member of the Labor and Employment Team of Brennan, Manna & Diamond LLC, if you need any assistance navigating issues arising from the COVID-19 pandemic, paid leave under the FFCRA, or back-to-school questions or concerns.
Drafted with the assistance of Monica Andress.