Legal Alerts

COVID-19 Response: Schools, Returning to Work, and the FFCRA

(August 11, 2020) - School plans across the nation are changing so fast that parents, guardians, and employers can barely keep up. While schools decide whether to offer in-person or virtual learning, essential workers continue to work, some non-essential workers are returning to their places of business, and others continue to work remotely. With the school year commencing, a common question is whether distance or online learning constitutes a school closure under the Families First Coronavirus Response Act (FFCRA), which provides paid leave for covered employees who are unable to work due to certain COVID-19 related reasons. A summary of the FFCRA provisions may be found in our previous alert here.

The short answer to this pressing question is yes. The U.S. Department of Labor (DOL) answers this question in response to Question 70 of its FAQ on the FFCRA: My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”? Yes. If the physical location where your child received instruction or care is now closed, the school or place of care is “closed” for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” your child is still expected or required to complete assignments.

However, the DOL’s answer still leaves unaddressed some of the most critical questions asked by parents and employers. Of foremost concern, what if a school offers students a choice between in-person and remote learning, and the parent or guardian elects remote learning? In this situation, the employee likely is ineligible for FCCRA leave. Alternatively, what if the school operates under a hybrid system, where in-person learning is restricted to certain days of the week and is supplemented with remote learning? Here, FFCRA leave likely will be available. Inherent in the analysis is the extent to which parents have a choice as to their children’s mode of learning.

In addition to considering the requirements under FFCRA for these situations, employers also must consider the impact of a patchwork of state and local leave and COVID-19 related laws across the nation. As a best practice, covered employers should ensure they have a stand-alone FFCRA policy (the law sunsets on December 31, 2020) that takes into account state and local laws, leave request forms, and the legally required FCCRA poster accessible to all employees, whether displayed at their place of business or accessible remotely.

Lewis Brisbois’ national Labor & Employment Practice and COVID-19 Response Team are available to draft polices and answer questions on the application of FCCRA to your business.

Author:

Mary A. Smigielski, Partner 

Editor:

Thalia S. Rofos, Associate

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