What Employers Should Know About FFCRA & School Re-Openings
As schools begin to reopen, many cities and states have planned for students to attend class remotely, or physically attend school a few days a week, half-days, or full-time. It's imperative that employers understand how the Families First Coronavirus Response Act (FFCRA) impacts the rights of employees who may need to take leave if their children are home from school. As a reminder, FFCRA permits eligible employees to take Emergency Paid Sick Leave (EPSL) and/or expanded family and medical leave (EFML) if they are unable to work or telework because they need to care for their son or daughter in the event that:
The child’s school or place of care is closed
The childcare provider is unavailable, due to COVID-19-related reasons.
FFCRA regulations allow for an employee to take leave to care for their child only when the employee needs to, and actually is, caring for the child. Below are some commonly asked questions when it comes to FFCRA. Question: Is a child’s school or place of care deemed “closed” for purposes of the FFCRA if it has moved to online instruction or to another model in which children are required to complete assignments at home? Answer: Yes. If the school or place of instruction is closed, EPSL and EFML will apply. The DOL has advised that this is true even if some or all instruction is being provided online or through distance learning. In order to be eligible for FFCRA leave, employees must still certify that there is no other suitable person that can care for the child. Question: Is an employee entitled to FFCRA leave if they choose to keep the child at home or have the child homeschooled even though the child’s school is open? Answer: No. The DOL has indicated that employees do not need to take leave if their usual childcare provider is available to provide care. Question: Can an employer deny FFCRA leave to an employee who previously teleworked while the child’s school was closed but intends to request leave if the child’s school remains closed for the fall? Answer: No, the DOL has determined that simply because an employee has been teleworking despite having their children at home does not mean the employee is prevented from now taking leave to care for the child whose school is closed for a COVID-19-related reason. Question: Can an employee use EPSL for child care purposes if the employee already used up their 80 hours of EPSL for other purposes? Answer: No, DOL regulations state that employees are entitled to a one-time use of 80 hours of leave regardless of the reason. Question: Can employees use EFML leave if they have already exhausted their FMLA leave allotment for the benefit year? Answer: No. An employee may only take a total of 12 workweeks for FMLA or EFMLA reasons during the employer’s designated benefit year. Question: What supporting documents must employees provide to their employers for FFCRA purposes? Answer: Employees must provide the following information to their employers, either orally or in writing:
Reason for the leave
A statement that the employee is unable to work because of a qualifying FFCRA reason
If the employee is requesting leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, they must also provide the following:
Name of the child
Name of the school, place of care, or childcare provider that has closed or become unavailable
A statement that no other suitable person is available to care for the child
Please remember that a New York federal court recently held that supporting documentation may not be required as a precondition for FFCRA leave. Employers should ensure documentation is not required to start the leave under FFCRA. Documentation can be submitted after the leave has commenced.