As readers are likely aware, we have frequently discussed the Families First Coronavirus Response Act (FFCRA) to ensure that employers were prepared to meet the challenges of this unprecedented pandemic. As we explained, among a multitude of requirements, the FFCRA requires many employers to provide paid leave under certain circumstances and it also expands Family Medical Leave Act (FMLA) for many employers under certain circumstances. Our previous FFCRA legal updates can be found here. Recently, the Department of Labor (DOL) provided guidance and clarified the provisions of the FFCRA related to leave availability due to childcare.
DOL’s Guidance
The DOL provided clarification regarding childcare leave via its “Families First Coronavirus Response Act: Questions and Answers” numbers 98-100. This guidance is important as many schools across the country are beginning to reopen in varying ways. This guidance focuses on the availability of paid leave for childcare under the FFCRA depending on whether a school is offering a hybrid attendance model, optional remote attendance model, or initial remote attendance model followed by a possible re-opening for in-person learning.
Hybrid Attendance
Hybrid attendance is described as a school being open each day, but students alternate between days they attend school in-person and days students participate in remote learning. Students under a hybrid attendance model are only permitted to attend school on their allotted in-person attendance days.
Under the hybrid attendance model, employees are eligible for paid leave for childcare under the FFCRA on days when the child is not permitted to attend school in-person, and must instead engage in remote learning (as long as the employee needs the leave to actually care for the child during that time and there is no other suitable person available to do so).
Optional Remote Attendance
Optional remote attendance is described as a school giving parents the choice between having their child attend in-person or participate in a remote learning program.
Under the optional remote attendance model, employees are not eligible for paid leave for childcare under the FFCRA if they sign up for remote learning because they are worried their child might contract COVID-19 and bring it home to the family. This is because the school is not closed due to COVID-19. However, if, because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to quarantine, the employee may be able to take paid FFCRA leave to care for the child.
Initial Remote Attendance
Initial remote attendance is described as a school that is beginning the school year with remote learning out of concern for COVID-19, but signaling that it will evaluate ever-changing circumstances to make a decision about re-opening for in-person attendance later in the year.
Under the initial remote attendance model, employees are eligible to take paid leave for childcare under the FFCRA while the child’s school remains closed. If the school reopens, the availability of the paid leave under the FFCRA will depend on how the school reopens (e.g., hybrid attendance or optional attendance).
Takeaway
Employers should be mindful of this guidance when dealing with FFCRA-related childcare leave issues. Employers should also pay close attention to future updates from the DOL on these issues for additional clarity as the models for returning-to-school evolve. This guidance does not change the underlying basis for the FFCRA or much of the previous guidance issued by the DOL. Employers must still continue to follow the FFCRA and may continue to rely upon previous guidance that was unaffected by this new guidance.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.