Employees and Employers are in unprecedented times where they are having to juggle work and virtual school. Some schools have remained open, with restrictions. Others have gone completely virtual. And some offer hybrid approaches. This article is a guide for Employers on the application of the Families First Coronavirus Response Act (“FCCRA”) as related to managing work and leave options for Employees who have children at home who would ordinarily be in school or in daycare. This article does not cover other qualifying factors for Employee leave under the FCCRA.
Emergency Family and Medical Leave for Virtual School
The FCCRA provides emergency paid leave entitlements in response to COVID-19. The FCCRA applies to Employers who have fewer than 500 full-time and part-time Employees in the United States. FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178. If a private sector Employer has more than 500 Employees, then the FCCRA does not apply; however they may choose to follow it.
Under the FCCRA, Employees are able to take Emergency Family and Medical Leave (“EFMLA”) if the Employee’s child’s school is virtual. 29 U.S.C.A. § 2620. However, if a school is open but a parent opts to educate their child virtually, then they may not qualify. See DOL, Families First Coronavirus Response Act: Questions and Answers, at Question 63. The Department of Labor (“DOL”) has provided guidance that school instruction should be entirely online to be considered “closed.” Id. Additionally, if an Employee chooses to take EFMLA, the Employee should be aware that it counts towards their 12 workweeks of their regular Family and Medical Leave Act (“FMLA”) entitlement. DOL, Wage & Hour Div., Fact Sheet # 28H, 12-Month period under the Family and Medical Leave Act. Note, that under the FCCRA, the Emergency Paid Sick Leave provisions are different than EFMLA. The Emergency Paid Sick Leave (“EPSL”) is an additional benefit to supplement company leave policies.
Should an Employee choose to take EFMLA due to a child’s school closing, the Employee is entitled to take up to 12 weeks of leave and 10 of those weeks are paid; the first two weeks of that leave is unpaid. 29 U.S.C.A. § 2620. If an Employee has not used their two weeks of paid leave under the EPSL, then they may use those two weeks of paid leave (10 workdays) for the first two weeks of EFMLA leave. After the first two weeks, EFMLA is paid at 2/3 of the Employee’s regular rate of pay for the hours they would have been scheduled to work. 29 U.S.C.A. § 2620.
If an Employee qualifies for EFMLA and chooses to take leave due to a school closure for their child, then the Employee would not be working.
Emergency Paid Sick Leave
The EPSL may be utilized by an Employee who has a child where his or her school is closed. Under the EPSL, 10 workdays of paid leave are provided. FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178. This leave can cover the first 10 workdays under EFMLA leave, which are otherwise unpaid, unless the Employee has already taken EPSL. 29 C.F.R. § 826.60.
If the Employee has taken EPSL, the Employer can allow the Employee to use existing vacation, sick, personal or medical leave policy to supplement. 29 C.F.R. § 826.60. Additionally, some states have passed laws with additional benefits for those Employees affected by COVID-19. If an Employee is taking EPSL, they are taking leave and would not be working or performing their job duties while the leave is taken.
Documenting Leave and Intermittent Leave
Should an Employee request leave to care for his or her child whose place of care or school is closed, the Employer must document 1) the name of the child being cared for; 2) the name of the school, place of care, or child care provider that has closed or become unavailable; and 3) a statement from the Employee that no other suitable person is available to care for the child. See DOL, Families First Coronavirus Response Act: Questions and Answers, at Question 16.
Some schools are doing an “A/B schedule” where the students go on staggered days and stay home and do virtual school on other days—categorizing students based on their last name. If this happens, a parent could use leave intermittently on the days their child is home. The DOL notes that if the child’s school, place of care or child care provider are closed or unavailable on only certain days, as opposed to an entire week, then the Employee does not need to take intermittent leave if working on an alternating schedule that was agreed upon because each day of closure is a separate reason for leave, and thus the Employee would not need to take leave for a single reason intermittently. See DOL, Families First Coronavirus Response Act: Questions and Answers, at Question 21, 63, 98 and 99. As a result, the Employee would not need Employer permission to take paid leave on just the days of closure or unavailability. Employers should be flexible during these times and can enter into voluntary arrangements.
In the event that a student’s school is virtual and both parents want to take off smaller amounts of time rather than one parent for the entire time, each parent can use intermittent leave and alternate the use of it should both of their Employers agree. See DOL, Families First Coronavirus Response Act: Questions and Answers, at Question 63, 98 and 99. For example, one parent could be home and schooling children on Monday, Wednesday and Friday and the other parent on Tuesday and Thursday. The days the parent was not at home schooling, the parent would be at work performing his or her job duties.
Remote Work Options for Employees Schooling Children
Some Employers and Employees have opted to allow work from home if the Employee wants and is able to do both virtual school and continue to fulfill their work obligations. Employers should craft remote work policies with appropriate forms should they choose this option. Remote work policies should include the process for requesting remote work options, the hours the Employee is to be available and working, what mode of communication should be used and the equipment provided to the Employee to carry out their work. It is also important for Employers to provide Employees with expectations and how they plan to measure performance of the Employee.
If an Employee can perform his or her job duties while having children do virtual school or homeschool at home, this would allow the Employer to maintain operations and the Employee would receive their regular rate of pay.