Legal Alerts

COVID-19 Response: School Reopening Plans - Leave Management Considerations for Employers in the “New Normal”

(July 21, 2020) (UPDATED August 3, 2020) - When the country was first faced with the coronavirus pandemic, many parents, students, and teachers believed there was a good chance school would resume following Spring Break. However, as the days, weeks, and now months have passed, it became clear that the “new normal” would require rethinking school as we know it. With the new school year now right around the corner, many districts are starting to release their fall reopening plans. It goes without saying that these plans are causing parents quite a bit of panic and anxiety. How will school reopen? Will it be safe for students and educators? How will my child continue with remote learning when I work full-time? Even if I can telework, how will I balance work and being my child’s teacher? What are my options?

Various states and school districts are taking different approaches with regard to how schools will reopen in the fall. These plans can generally be organized into the following categories: 1) full-time remote learning; 2) in-person learning with an option for remote learning; and 3) hybrid learning scenarios with a combination of remote learning and in-person instruction. Although these decisions largely will be made on the local level, the rise in coronavirus cases has spurred some states to establish parameters governing when schools may reopen. For example, on Friday, July 17, California Governor Newsom issued guidance for California schools which requires them to remain closed and to offer remote learning until their applicable county has been off of the state’s “watch list” for 14 days. Unfortunately, for parents and employers alike, this means more uncertainty. Specific school reopening plans are even more vague about whether, and under what conditions, schools may temporarily close and shift to remote learning should students and faculty have to quarantine due to positive coronavirus tests.

What does this mean for employers? First, it will be critical to understand leave management obligations applicable to covered employers under the federal Families First Coronavirus Response Act (FFCRA) as well as state and local laws. Second, employers, once again, are going to be asked to adapt to the “new normal” when dealing with employee requests for leave. To help employers anticipate and navigate leave management issues that may arise related to school or place of care closures and/or the unavailability of childcare for reasons related to COVID-19, we have prepared the following FFCRA Frequently Asked Questions and Answers (FAQs). It is important to note, however, that given the new issues presented by the school reopening plans, additional guidance and clarification from the U.S. Department of Labor (DOL) likely will be forthcoming. Accordingly, employers should consult with counsel for the latest developments.

Please also see our recent client alert and the underlined sections below addressing an August 3, 2020 decision by a New York federal court that invalidates a portion of the DOL Final Rule implementing the FFCRA. 

What paid leave is available under the FFCRA when an eligible employee is unable to work (or unable to telework) because of the need to care for a child (under age 18) whose school or place of care is closed (or a childcare provider is unavailable) for reasons related to COVID-19?

There are two “buckets” of leave available under the FFCRA: Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA). An employee can use either bucket if unable to work or telework due to the need to care for a child, but only for up to a total of 12 weeks of leave. In order to be eligible for this leave, the employee must be primarily responsible for the child’s care and another “suitable individual,” such as a co-parent, co-guardian, or the “usual child care provider,” must not be available to provide the care the child needs.

The amount of pay is based on the reason for FFCRA leave. For school closures or childcare unavailability, EPSL provides the initial two weeks, up to 80 hours of leave (for full-time employees), which is payable at 2/3 of the employee’s average regular rate of pay up to $200 per day, or $2,000 maximum over the two-week period. EFMLA provides up to an additional 10 weeks of leave payable at 2/3 of the employee’s average regular rate of pay, up to $200 per day and $12,000 in the aggregate. If an employee has already exhausted EPSL (for other COVID-19 reasons), the employee can take up to 12 weeks of EFMLA (depending on prior Family and Medical Leave Act (FMLA) use, if any), but the first ten days are unpaid. During any unpaid EFMLA, an employee may choose to substitute earned accrued paid leave provided by the employer (e.g., vacation or paid time off (PTO)).

Can an employee take FFCRA leave if their child’s school is open, but the employee opts out of in-person learning and selects remote learning instead?

Generally, no. In order to be eligible for FFCRA leave, the physical location where the child receives instruction or care must be closed. If, however, the school is operating at reduced capacity to comply with social distancing guidelines, such that the employee’s child has no choice but to receive remote learning, FFCRA may be available. When issuing its guidance regarding the closure of summer programs and camps, the DOL opined that summer camps may be “closed” for FFCRA leave eligibility purposes if they were “partially closed” for reasons related to COVID-19 because they had to operate at reduced capacity. The same analysis would seem to be applicable to schools reopening in the fall, but DOL guidance on this issue would be welcome.

What if the school is open, but my employee chooses the remote learning option because the employee’s child is particularly vulnerable to COVID-19 and a healthcare provider has recommended against in-person learning?

Arguably, EFMLA is not available because the “physical location” of the child’s school is open. EPSL may be available, however, to care for a child who has been advised to stay home or otherwise quarantine because they are particularly vulnerable to COVID-19. It is not clear whether the inability to attend in-person instruction would be comparable to a quarantine recommendation. Further guidance from the DOL on this issue is needed. Even if FFCRA leave is not available in this scenario, FMLA may be available for eligible employees to care for a child “during a period of incapacity,” which includes being unable to attend school. Employers also should be mindful of discrimination protections that may be applicable under federal, state, or local law for disability association and/or caregiver responsibilities.

Is an employee eligible for FFCRA leave if the school operates under a hybrid system where in-person learning is restricted to certain days of the week (e.g., M-W-F) and is supplemented with remote learning (e.g., T-Th)?

It depends. As noted above, if a school is partially closed due to COVID-19, FFCRA leave likely will be available. Moreover, as the DOL has noted, school is “closed” even if remote learning is provided. Accordingly, if the employee is not able to work or telework on days when school is closed, FFCRA leave may apply. Similarly, if a school partially closes by temporarily requiring remote instruction for certain classrooms where there has been possible exposure to COVID-19, FFCRA likely will apply if the employee’s child can no longer attend in-person instruction. Given the number of school districts that intend on using the hybrid model, employers are looking to the DOL to provide clarification and/or more detailed guidance on this issue.

Is an employee eligible for FFCRA leave if their child’s before or after school care or childcare provider is no longer available due to COVID-19 related reasons?

Yes. If the place of care (which includes before or after school programs) is closed or has reduced capacity or if the regular childcare provider is no longer available, FFCRA leave may be available. A childcare provider includes individuals paid to provide child care as well as family members. One anticipated scenario is that once a child returns to in-person instruction, a grandparent or other family member may no longer be available for afterschool care due to health concerns. Some employers have asked whether an employee has an affirmative obligation to seek alternative childcare arrangements. Although there is no DOL guidance directly on point, requiring an employee to seek childcare alternatives could give rise to an FFCRA interference claim.

Is intermittent FFRCA leave available if an employee is unable to work or telework because they need to care for their child whose school or place of care is closed or childcare is unavailable due to COVID-19?

Yes, but only if permitted by the employer. Update: A recent New York federal court decision invalidated a portion of the DOL Final Rule that provided intermittent leave was only available with employer consent. Employers who do not want to provide intermittent FFCRA leave due to business interruption concerns should consult with counsel to evaluate the impact of this ruling. Lewis Brisbois is monitoring developments to determine whether the DOL files an appeal which may stay this ruling or whether the DOL promulgates revised rules and/or interim guidance. Intermittent leave may be taken in any increment of time agreed to by the employer and employee. Only the amount of FFCRA leave actually taken may be counted toward the employee’s leave entitlements. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs. Although such arrangements do not need to be in writing, documenting the clear and mutual understanding of the parties, and any performance expectations while taking intermittent leave, is a best practice and may be beneficial to support receipt of any requested tax credits. Remember, intermittent EPSL is not available for other FFCRA reasons (e.g., testing positive for COVID-19) unless the employee works remotely.

Can my employee use EPSL for a school or place of care closure, or childcare unavailability related to COVID-19 if they previously used 80 hours of EPSL when they were advised by a healthcare provider to self-quarantine?

No. The total amount of EPSL an employee may receive through December 31, 2020 is up to 80 hours for full-time employees, regardless of the number of different reasons an employee may need leave. For example, if a full-time employee previously took 40 hours of EPSL while seeking a medical diagnosis related to COVID-19, the employee may only use an additional 40 hours of EPSL for a school or place of care closure or childcare unavailability.

Can an employee take FFCRA leave if they were eligible for, and used some or all of their leave under, the FMLA?

EPSL is available regardless of how much leave has been taken under the FMLA other than as explained below. The amount of EFMLA that is available, however, will depend on how much FMLA leave the employee has already used during the employer’s 12-month measurement period. For example, if an employee previously used 8 weeks of FMLA, the employee can use 4 weeks of EFMLA through the remainder of the employer’s 12-month measurement period. If the employee previously exhausted their FMLA, no EFMLA leave is available unless and until additional FMLA becomes available prior to December 31, 2020 (when FFCRA is set to expire). Any EFMLA leave taken will count against the employee’s preexisting FMLA leave.

Will EPSL count against any other type of paid sick leave that may be available under state or local law?

No. EPSL is a new leave entitlement that is provided in addition to any leave available under federal, state, or local law. Per the DOL, an employer may not require employer-provided paid leave to run concurrently with, or to cover the same hours as, EPSL. In contrast, an employer can require any employer-provided paid vacation or PTO to run concurrently with paid EFMLA leave (typically not paid sick leave or medical leave). If so required, the employer must pay the employee their full regular rate of pay (as opposed to 2/3) until such paid leave is exhausted, and the employer may only obtain tax credits for the wages paid at 2/3 of the employee’s regular rate of pay up to the daily and aggregate limits. Additionally, if both the employer and employee agree, and subject to applicable state or local law, an employer may allow an employee to use their accrued paid leave to supplement or “top off” their EFMLA paid leave.

Prior to summer break, my employee successfully teleworked from home while their child’s school was closed. Can I deny a request for FFCRA leave if their child’s school does not reopen in the fall?

Generally, no. Just because the employee did not utilize FFCRA leave previously does not mean the employee is not eligible for this leave now. As noted by the DOL, there are many reasons why an employee may now need FFCRA leave when they did not previously. For example, the employee may feel they are not able to care effectively for the child while teleworking, particularly if remote learning expectations are increased. Additionally, another suitable caregiver may no longer be available. Employers can, however, inquire whether the employee would be interested in intermittent leave or a flexible work arrangement to enable the employee to manage their workload and childcare/teaching responsibilities.

Does the FFCRA provide for any exceptions or exclusions from FFCRA leave for school or place of care closure, or childcare unavailability related to COVID-19?

Yes. In addition to excluding employers with 500 or more employees, the FFCRA permits employers to exclude healthcare providers and first responders from the EPSL and EFMLA requirements. Although the DOL encourages “judicious use” of this exception to minimize the spread of the virus (e.g., where a healthcare provider employee tested positive for COVID-19), the use of this exclusion may warrant less scrutiny when applied to requests for EFMLA leave.

Update: A recent New York federal court decision invalidated a portion of the DOL Final Rule that broadly defined “health care provider.” Health care provider employers should consult with counsel to determine whether this ruling is appealed and stayed, or whether the DOL promulgates revised rules which may more narrowly define a “health care provider” or which provide other interim guidance.  

Additionally, small businesses (employers with fewer than 50 employees) may qualify for an exemption for providing EPSL or EFMLA for school or place of care closures, or unavailability of child care, if providing such paid leave would jeopardize the viability of the small business as a going concern. Specifically, a small business may claim this exemption if an authorized officer of the business makes a determination that at least one of the following applies: (1) the expenses associated with the leave would exceed revenue; (2) the absence of the employee would entail a substantial risk to the financial health or operational capabilities of the organization because of their special skills; or (3) there are not sufficient workers who are able, willing, qualified, and available to perform the services needed for the business to operate at minimal capacity.

Are there other leave management considerations I should consider?

In addition to FFCRA, several state and/or local jurisdictions require and/or have expanded their leave laws to require paid or unpaid leave when there is a school closure related to a public health emergency, including: Arizona, California (including Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa), Colorado, Washington D.C., Chicago, Cook County (Illinois), Maine, Montgomery County (Maryland), Michigan, Minneapolis, Saint Paul, Nevada, New Jersey, New Mexico, New York City, Westchester County (New York), Philadelphia, Pittsburgh, Rhode Island, Vermont, Washington, and Seattle. Furthermore, Oregon enacted Emergency School Closure Leave, which is set to expire on September 13, 2020 but is likely to be revisited. Of note, Colorado’s Healthy Families and Workplaces Act also extended the FFCRA requirement to provide EPSL to employers with 500 or more employees (albeit without the FFCRA tax credit). Accordingly, employers should continually monitor state and local developments to ensure all applicable leave laws are followed.

Key Takeaway for Employers

COVID-19 has taken a heavy toll on employers and employees alike, and good communication remains critical. In addition to business interruptions, financial pressures, and the need to keep pace with, and adjust to, new compliance requirements, employers are growing more concerned about the health and well-being of their workforces, particularly as employees take on the added role of at-home educator. Not all industries or positions afford flexibility. But where such flexibility exists, employers should plan ahead by facilitating discussions with their employees to learn how the school reopening plans may impact their work schedule, whether remote work is or remains an option, and whether any added flexibility to the schedule or intermittent leave may provide workable solutions. If leave is needed, best practices include the following:

  • Understand and comply with FFCRA leave and related documentation and recordkeeping requirements (which often limit when and what an employer may request and/or require). Employers also should monitor legal developments that may impact leave management, such as updated guidance from the DOL;
     
  • Document any flex schedule or intermittent leave arrangements and any performance expectations regarding same; and
     
  • Track FFCRA leave and coordinate with other leave which may be available, including FMLA, employer provided leave such as vacation/PTO, and/or other federal, state, or local law requirements.

Lewis Brisbois can prepare forms and policies to help clients navigate their leave management responsibilities related to COVID-19, including FFCRA leave request forms and designation notices, Americans with Disabilities Act (ADA) medical inquiry forms, and remote work policies.

Please reach out to your Lewis Brisbois contact or any member of our COVID-19 Attorney Response Team for the most up to date information or if you have any compliance assistance needs.

Authors:

Diane L. Waters, Partner

Rita R. Kanno, Partner

Erica Rocush, Partner

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