Rita Kanno and Diane Waters Contribute to SHRM Article on COVID-19-Related Legal Questions

(August 3, 2020) - San Diego Partner Rita R. Kanno and Dallas Partner Diane L. Waters recently contributed to an article published by the Society for Human Resource Management (SHRM) on COVID-19-related legal questions titled “4 COVID-19 Legal Questions You Should Answer.” Mses. Kanno and Waters provided their analyses for the portion of the article addressing whether leave is available to employees in the event that schools remain closed or offer a hybrid model with remote and in-person learning components.

As the article explains, Mses. Kanno and Waters elaborated upon the applicable federal law concerning COVID-19-related leave, stating, "Under the federal Families First Coronavirus Response Act [FFCRA]—which applies to employers with fewer than 500 employees—there are two 'buckets' of leave available for school or place-of-care closures or child care unavailability related to COVID-19: emergency paid sick leave and expanded family and medical leave. An employee can use both buckets for this type of leave, but only for up to a total of 12 weeks of leave." They further specified that to be eligible for this leave, another "suitable individual," such as a co-parent, co-guardian, or the "usual child care provider," must not be available to provide child care.

Mses. Kanno and Waters also clarified that if a school is open for in-person instruction, but employees choose to enroll their children in a remote learning option, they would not qualify for leave. They noted, "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, or if the school uses a hybrid model where in-person instruction is only provided on certain days of the week, FFCRA may be available."

Mses. Kanno and Waters also emphasized the importance of communication in establishing reasonable work arrangements. They recommend employers and employees discuss how school reopening plans may impact employees’ work schedules, whether the employees may work remotely, and whether flexible options, such as working around the school day or taking intermittent leave, may provide workable solutions.

Mses. Kanno and Waters are members of Lewis Brisbois’ Labor & Employment Practice and COVID-19 Response Team. Ms. Kanno’s practice focuses on employment-related litigation, including wage and hour class action defense, as well as matters involving claims of wrongful termination, sexual harassment, and employment discrimination. Ms. Waters’ practice focuses on providing general employment counseling and advice on a broad array of issues impacting the employer/employee relationship, as well as representing employers before federal and state administrative agencies.

You can read the full SHRM article here, and their most recent client alerts on recent FFCRA leave developments here and here.