Back to School under the FFCRA – DOL Provides Just-In-Time Guidance

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

August 31, 2020

 

Schools in many parts of the country are back in session and more will be opening daily.  But “back to school” doesn’t look like it used to in most regions.  School districts are reopening with a wide gamut of approaches, including physically re-opening full time, remote learning only, and mixtures of both. 

In other words, there is no “new normal” in school district arrangements and parents are left with an array of questions.  Not the least of these is how the Families First Coronavirus Response Act will apply to these situations, especially in light of prior guidance from the U.S. Department of Labor that FFCRA leave could be taken intermittently for school closures only with employer agreement.  See the DOL’s FFCRA Questions and Answers, questions 20-22.   

 

For employees of companies with fewer than 500 employees, the Families First Coronavirus Response Act provides paid, job-protected time off when a parent can’t work because his child’s school is closed due to COVID-19. You can read our most comprehensive summary here, and find other articles relating to FFCRA by putting that term in the search box of our blog on any page.

 

I posed these questions to the DOL in late July: 

  1. Does an employee need employer consent to intermittent leave when a school is physically open only intermittently?
  2. And what if the school is physically open, but a parent chooses not to send a child to school due to continuing concerns about COVID-19 exposure?

Now we have answers!  On August 27 the DOL issued 3 new Q&As addressing these issues.  In short:

  • If a child’s school is operating on a hybrid schedule and the child is permitted to attend school in person only on certain days, the days the child is at home for remote learning are covered by FFCRA. (Question #98) Although this Q&A does not directly address the issue of intermittent leave and employer agreement, the gist of the guidance is that employer consent is not needed when the school itself is only open intermittently.
  • For any days a child’s school is physically open, a parent cannot use FFCRA leave even if the parent would prefer to keep the child at home. (Question #99) Harsh, perhaps, but that is a strict (and correct, in my opinion!) interpretation of the law.
  • If a school starts the school year with remote learning but later opens to in-person attendance in whole or in part, FFCRA leave is available initially.When the school reopens, FFCRA will not be available on those days the child could attend in person. (Question #100, referring back to #98 and #99)

You can read the full questions and the DOL’s answers here.

And now a word of thanks to my fellow bloggers:  Hey, it’s not just you – I absolutely admit it’s tough keeping up with all the COVID-19 news and other leave, disability, and accommodation developments.  That’s why you come to Matrix-Radar, and for that I am grateful! But that said, where do I go?

Glad you asked. In addition to many technical resources, I get help and validation of my interpretations (although sometimes we disagree!) from my fellow bloggers Jeff Nowak at FMLA Insights (a long-time friend and collaborator), Eric Meyer at The Employer Handbook, and Jon Hyman at Ohio Employer's Law Blog.  I urge you to sign up for each of these blogs (and this one if you haven’t already!). Jeff and I both cover the FMLA and ADA; this blog (Matrix Radar) also addresses state leave laws in detail.  Eric and Jon cover the same topics as well as broader employment law issues – and they blog nearly every day!!!  Eric first encouraged me to send my questions above to the DOL.  And don’t let Jon’s blog title reference to Ohio fool you – his coverage goes well beyond Ohio issues. 

Buckle up, it’s going to be a wild ride!

We are approaching the final quarter of 2020 and I think it’s safe to say my colleagues and I have said and written the word “unprecedented” an unprecedented number of times. Maybe you can commiserate? Nothing like a global pandemic during a presidential election year to pour gasoline on an already-raging national debate on paid family leave! Here are three things to remember, in ascending order of importance:

  1. We are writing history right now; there is no playbook. This is maddening, especially for detail oriented compliance professionals, but it is also exhilarating in a way. Take a breath and think of it as a journey.
  2. Sometimes questions can’t be voiced until change is implemented and systems road-tested. Under the best of circumstances, evolution is fluid and takes longer than you want it to.
  3. And finally, you don’t have to be the expert on everything! Find resources like this blog, and the ones referenced above; stay informed; keep closely aligned with your CEO and legal team; and, in the end, we will be okay.

Not “back to normal,” perhaps, because backwards isn’t an option. But we will be okay.

While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at [email protected], and our colleagues will make it so!

Posted On August 31, 2020