School Reopenings and the Families First Coronavirus Response Act Revisited

In light of COVID-19, many local school districts have published their preliminary reopening plans for the 2020-2021 academic year. Many of these plans implement hybrid instruction, allowing for in-person and remote learning. If children are required to engage in remote learning during all or part of the school week, this may result in employee requests for leave pursuant to the Families First Coronavirus Response Act (FFCRA). We revisit key provisions of the FFCRA, as applied to school or child care closures, below:
• Generally, private sector employers with fewer than 500 employees are required to provide up to 12 weeks of paid leave at 2/3 an employee’s rate of pay if the employee is unable to work or telework because the employee is caring for a child whose school or place of care is closed or child care provider is unavailable for COVID-19-related reasons.

• The Department of Labor (DOL) has not provided specific guidance on whether a school or place of care is “closed” under the FFCRA in circumstances where a child’s school week consists of remote learning on some days and in-person learning on others.

• Current DOL guidance states that if the physical location where the employee’s child receives instruction is closed, the school or place of care is “closed” for purposes of the FFCRA, even if there is online instruction.

• Employers may, but are not required to, permit employees to take leave intermittently to care for their children.
     o Where intermittent leave is permitted, employers and employees should agree on a schedule, and the schedule should be reduced to writing.
     o Intermittent leave can be taken in any agreed-upon increment.
     o The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

• Employers can receive a tax credit for qualified leave wages by obtaining the following, in writing, from employees:
     o The employee’s name;
     o The date or dates for which leave is requested;
     o The reason for leave and written support for such reason;
     o The name and age of the child (or children) to be cared for;
     o The name of the school that has closed or place of care that is unavailable;
     o A statement that the employee is unable to work or telework for such reason;
     o A representation that no other person will be providing care for the child during the period for which the employee is receiving leave; and
     o If the employee is stating he cannot work to care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

• An employer with fewer than 50 employees is exempt from providing leave when doing so would jeopardize the viability of the business as a going concern.

• Health care providers, which the DOL defines as encompassing any employee of a health care facility, may be excluded by their employer from entitlement to leave.

• Generally, an employee is entitled to be restored to the same or an equivalent position upon return from FFCRA leave due to school or child care closure or child care provider unavailability but some exceptions exist for businesses with fewer than 25 employees and for certain highly compensated “key” employees if specific hardship criteria are met.

A recent federal court decision in the Southern District of New York, State of New York v United States Department of Labor et al., determined that some of the DOL’s regulations under the FFCRA are invalid. The decision struck down the DOL’s definition of health care provider and the requirement that an employer consent to intermittent leave. It also invalidated the requirement that an employee provide documentation in support of FFCRA leave prior to taking such leave. Employers should be aware of this decision and its implications in applying the FFCRA.
The full DOL FAQ can be found here:
The Attorneys at Levene Gouldin & Thompson, LLP are available to provide advice and counsel concerning matters related to COVID-19.

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