DOL Says That Parents Who Opt Out of In-Person Learning Cannot Use Paid FFCRA Leave, But May Use the Leave for Remote Days Where a School is Using a Hybrid Model
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The U.S. DOL issued additional guidance on August 27, 2020 as to when employees may use paid Families First Coronavirus Response Act (“FFCRA”) leave to care for their children under different COVID-related school models. (For more in-depth information on the various leaves available under the FFCRA please access my colleagues’ prior posts on the subject here and here).  Until now, it was unclear whether FFCRA leave for school closures applied in the situation where a school is using a hybrid model or in the situation where a parent has chosen remote learning even though the school also is offering in-person education. 

The first question addressed in the new guidance is whether an employee is entitled to take paid leave under the FFCRA if their child’s school is operating on a hybrid attendance basis; i.e., where the school is open full-time but the students alternate between in-person and remote learning on different days.  The DOL’s new guidance states that an employee is “eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during the time and only if no other suitable person is available to do so.”  The DOL noted that on the remote learning days, the school is effectively closed to the employee’s children because they cannot attend in person.  This appears to create a de facto right for employees in this situation to take FFCRA leave for school closures on an intermittent basis, even though the DOL’s guidance still contains provisions stating that intermittent leave for school closures may only be taken with the employer’s permission.

The second question is whether an employee may use paid FFCRA leave in the situation where the child’s school is open (either full-time or in a hybrid model), but the employee chooses remote learning for his/her child.  In that case, the DOL has answered definitively that the employee is not entitled to use paid FFCRA leave because the school is not “closed.”  Be aware, however, that if the child is under quarantine or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be able to take up to 80 hours of paid leave under the Emergency Paid Sick Leave Act to care for the child, or to take regular unpaid FMLA leave if the child’s condition qualifies as a serious health condition.

The final situation addressed by the guidance is when the school has started the year under remote learning with the intent to reevaluate whether to remain remote or open for in-person learning later in the school year.  Not surprisingly, the DOL indicated that as long as the school remains closed, the parent is eligible to use paid FFCRA leave to care for the child.  Most Connecticut school districts using a hybrid model are alternating days, alternating weeks or using a model where each group attends school in-person two days per week with the entire school attending remote learning on Wednesdays.  This is likely to create chaos both for parents and for employers who now will be required to accommodate varying intermittent leave schedules for different employees depending on where each employee’s children attend school.  If you need assistance navigating this ever-increasingly complex issue, contact any of the attorneys in Pullman & Comley’s Labor and Employment practice. 

Posted in COVID-19, Leave

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