Entering into Labor Day weekend and with many schools relying on remote instruction, it is important to know what leave is permitted for parents under the FFCRA.
The FFCRA may provide employees with up to two weeks of emergency paid sick leave and up to 12 weeks of expanded family and medical leave if an employee needs to “care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons”. The Department of Labor has recently issued guidance as to what constitutes whether a school is effectively “closed” and when FFCRA leave is available if an employee needs to care for a child.
Employees are eligible to take paid leave under the FFCRA on days when a child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for a child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” on days that a child cannot attend in person. Employees may take paid leave under the FFCRA on each of a child’s remote-learning days.
FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If a child is home not because his or her school is closed, but because an employee voluntarily chose for the child to remain home, employees are not entitled to FFCRA paid leave. School is not “closed” due to COVID–19 related reasons if the choice is made to stay home. However, if, because of COVID-19, a child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, an employee may be eligible to take paid leave to care for him or her.
If a school is operating on an alternate day (or other hybrid-attendance) basis, employees may be eligible to take paid leave under the FFCRA on each of a child’s remote-learning days because the school is effectively “closed” to the child on those days.
Employers need to be careful in implementing law and making employment decisions, as employers may not use a request for leave as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough. Further, employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA.