Metz Lewis Brodman Must O'Keefe

Metz Lewis Brodman Must O'Keefe

Posted on August 28, 2020

We’ve previously written about the changes to paid leave law brought about by the Families First Coronavirus Relief Act (FFCRA) and how the new law impacts employers as they reopen.

As schools reopen under a variety of formats (for example, in-person, distance learning, and hybrid attendance models), the U.S. Department of Labor has issued new guidance addressing how school reopening plans affect employees’ entitlement to paid leave under the FFCRA.

To recap, the FFCRA entitles employees to paid leave when they cannot work (or telework) in order to care for their child because the child’s school or place of care is closed, and no one else is available to care for the child.

Whether an employee is entitled to FFCRA paid leave after schools reopen depends on if the school is “closed” to in-person learning or not. According to the DOL, “FFCRA leave is not available to take care of a child whose school is open for in-person attendance.” Below are a few of the more common school reopening scenarios:

  • The school makes in-person learning available. If a school uses a 100% in-person learning model, then it is not “closed,” and an employee is not eligible for FFCRA paid leave. If, on the other hand, a school uses a fully remote learning model, then it is “closed,” and an employee is eligible for FFCRA paid leave.
  • An employee’s preference for distance learning does not control. If a school allows parents to choose between in-person and remote learning, and an employee chooses remote learning due to a concern the child may contract COVID-19 at school, the employee is not entitled to FFCRA paid leave. The school is not “closed” for FFCRA purposes because it is open for in-person attendance.
  • The school uses a hybrid-attendance model. If the school uses a hybrid-attendance model that alternates between in-person attendance and distance learning on different days, the school is “closed” only on the distance learning days; it is open on the in-person attendance days. So, an employee is entitled to FFCRA paid leave for the remote learning days only, but not for the in-person learning days.

In these uncertain times, employers should take requests for FFCRA paid leave seriously and handle them as if they were requests for an accommodation subject to the ADA. In close cases, err on the side of granting the request, and contact legal counsel. The members of the Metz Lewis Employment Law Group (Jim O’Connor, Rachel Felton, and Justin Barron) are available to assist and answer any questions.

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