With the school year beginning and many schools opting to reopen with an alternative format due to COVID-19, the Wage and Hour Division of the Department of Labor (“DOL”) released new frequently asked questions (“FAQs”) aimed at clarifying paid leave under the Emergency Paid Sick Leave and Expanded Family and Medical leave portions of the Families First Coronavirus Response Act (“FFCRA”). Below are key areas discussed in the FAQs.[1]
Hybrid Attendance
Many schools are opting for a hybrid approach, students alternate between days in which they attend school in-person and days they participate in remote learning. In these settings, the newly added FAQs state that parent employees are eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in-person and must instead engage in remote learning. However, eligibility is limited to times during which the employee needs the leave to actually care for their child and only if no other suitable person is available to do so. For purposes of the FFCRA, the school is effectively “closed” to the employee’s child on days that he or she cannot attend in person. Therefore, the employee may take paid leave under the FFCRA on each of the child’s remote-learning days.[2]
Remote Learning
Other schools are beginning the year with a remote learning program. In these situations, employees are eligible to take paid leave under the FFCRA while their child’s school remains closed.
Optional In-Person
Additionally, some schools are giving parents a choice between having their child attend in-person or participate in a remote learning program. If the parent employee chooses the remote learning option, they may not take FFCRA paid leave. The DOL explains this is because the school is effectively not “closed” to the child due to COVID-19 related reasons. FFCRA leave is not available to take care of a child whose school is open for in-person attendance.
However, if, because of COVID-19, the employee’s child has been advised by a health care provider to quarantine or ordered to quarantine by a government entity, and the employee is needed to care for the child, the employee may be eligible to take paid leave to care for the child even if the school is open.
Substantiate Eligibility
Finally, in order to substantiate eligibility of an employee for the sick or family leave tax credits associated with FFCRA, an employer should receive in a written request from the employee containing:
- The employee’s name;
- The date or dates for which leave is requested;
- A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of telework, for such reason.
Although not addressed by the DOL FAQs, the Internal Revenue Service has further explained that the statement made by the employee should include the name and age of the child (or children), the name of the school that has “closed”, and a representation that no other person will be providing care for the child during the time for which the employee is receiving leave. Additionally, the IRS clarifies that if the child is over the age of fourteen, the employee will need to provide a statement depicting the special circumstances that exist that require that the employee provide care during daylight hours.
If you have any questions or would like additional information, please contact:
- Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com;
- Mary Kate Liffrig at (720) 282-2033 or mliffrig@wp.hallrender.com; or
- Your regular Hall Render attorney.
Special thanks to Claire Bailey, law clerk, for her assistance with this article.
[1] Readers are reminded that state and/or local municipality law may provide additional or different leave.
[2] The DOL has stated in its FAQs that, if the employee and their employer agree, an employee may take paid sick leave and/or paid expanded family and medical leave intermittently if the employee is taking leave to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. However, as discussed in an earlier blog post, on August 3, 2020, a federal judge in New York’s Southern District invalidated several aspects of the DOL’s guidance regarding the FFCRA – including guidance relating to employer consent for use of intermittent FMLA. It appears that the DOL will issue an updated regulation soon in response to the SDNY decision (see Bloomberg Law Daily Labor Report, September 1, 2020). Click here for a blog post discussing this revised regulation.
