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New DOL Guidance for Paid Leave for School Closures

With schools starting to open in Florida, employers are revisiting the Families First Coronavirus Response Act (“FFCRA”), which provides two weeks of paid sick leave related to COVID-19 and up to twelve weeks of paid leave under the expanded Family and Medical Leave Act (“EFMLA”). School districts are offering a mixture of online/virtual classes for students (temporary and permanent) and onsite classes for students. This new normal for schools has led to many questions from our clients about whether parents are eligible for the expanded FMLA (EFMLA at 2/3 pay for 10 weeks) to take care of their children due to different schooling arrangements, such as virtual.

Last week, the Department of Labor published new, updated guidance that guides employers about when employees (with school-age children) are entitled to paid benefits under the FFCRA. The guidance (in the form of FAQs 98, 99, and 100) focuses on whether the school is open to in-person attendance, or if all the classes are online and virtual. According to the DOL rules, a school is effectively “closed” to children on days that they cannot attend in-person classes. To qualify, an employee must need leave to actually care for their child during that time, and only if no other suitable person is available to do so. Here are four (4) key updates employers need to know:

If the child is not permitted to attend school in person and must instead engage in remote learning (FFCRA eligible).
If the parent is given a choice between having their child attend in person or participate in a remote learning program, and the employee signed up for remote learning because they were worried about their child getting COVID-19 (not FFCRA eligible).
If school is operating on an alternate day (or other hybrid-attendance) basis, and the child has mandatory remote-learning days because the school is effectively “closed” on those days (intermittent FFCRA eligible).
If the school year begins under a temporary remote learning program out of concern for COVID-19, but it will evaluate the local circumstances and make a decision about reopening for in-person attendance later (FFCRA eligible when school is closed).

Read the new DOL Guidance on Paid Leave due to Closed Schools and online, virtual classes. Contact Consultstu if your company has questions about when employees are entitled to leave and how to compensate employees taking leave under the FFCRA.

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