Elementary and secondary school students throughout New York State have begun returning to the classroom—in some cases virtually—over the last several days. Whether or not students will attend school in person depends on a number of factors, such as the parameters of each school district’s reopening plan, the child’s grade level, whether or not the child has an individualized education plan and parental preference. As an outgrowth of this new educational landscape, employers must learn how to assess requests by parents for paid leave under the Families First Coronavirus Response Act (FFCRA) to care for children who are learning virtually.
As a refresher, the FFCRA provides for up to twelve weeks of paid leave for employees who cannot work or work remotely due to the need to care for a child whose school or place of care is closed because of COVID-19. Leave is only available if other suitable childcare is not available. And, as a result of a recent decision by a federal court in New York, employees are entitled to take FFCRA childcare leave on an intermittent basis.
The basic contours of the law leave open the question of how employers should respond to requests for paid leave when children are learning remotely some or all of the time, either because their school will not permit them to attend in person or because their parents opted into a virtual learning model. The answer can be found in guidance provided by the United States Department of Labor (USDOL) in the form of responses to frequently asked questions (FAQs) that were most recently updated two weeks ago.
For starters, in its response to FAQ 70, USDOL explained that a child’s school or place of care is considered “closed” if its physical location is closed, even if instruction continues to be provided remotely and/or there is a continued expectation that the child will complete assignments.
More recently, in its response to FAQ 98, USDOL addressed situations in which a child’s school is open, but the school has adopted a hybrid reopening plan that only permits students to attend in-person every other day. According to USDOL, school is effectively considered “closed” on days when an employee’s child is not permitted to attend in person. In that case, a parent may take intermittent childcare leave under the FFCRA on each day the child is engaged in distance learning, so long as the employee actually needs to care for his or her child and no other suitable care is available.
The rules are different when a school has given families the option to have their children attend in person, but parents choose instead to have their children learn remotely. According to USDOL’s response to FAQ 99, parents who opt to have their children participate in distance learning are not entitled to paid childcare leave under the FFCRA because school is not considered “closed” in these circumstances. USDOL points out, however, that a parent might still be entitled to leave if a child is not attending school because he or she was advised by a healthcare provider to self-isolate or self-quarantine (e.g., if school is open but the child may not attend in person because he or she was exposed to COVID-19). In contrast to paid childcare leave, this type of leave has a maximum duration of 80 hours for full-time employees.
USDOL has also provided guidance on situations in which a school has begun the year under a remote learning model but announced that it may reopen for in-person learning at a later date. According to the response to FAQ 100, parents may take paid childcare leave for the period in which the school is only providing remote learning. Whether parents can continue to take advantage of leave after school reopens depends on the circumstances, such as those discussed in USDOL’s responses to FAQs 98 and 99.
Some employers have reacted with skepticism to requests for paid childcare leave by employees who, during the Spring months, managed to work remotely while their children learned virtually from home. Do these employees actually need leave and how far can employers go in trying to find out? FAQ 91 addresses whether employers in this situation can ask employees why they now believe they are unable to work and/whether they have pursued alternative childcare arrangements.
USDOL’s response reminds us that, in contrast to other job-protected leaves, FFCRA leave is to be made more liberally available to employees based only on limited documentation in order to further the goal of slowing the spread of COVID-19. Specifically, USDOL states that employers in this situation may only require an employee to provide an oral or written statement of the qualifying reason that he or she is unable to work, the name of the child being cared for, the name or the school or child care provider that has become unavailable, and a statement that no other suitable person is available to care for the child. While USDOL notes that an employer “may” ask the employee to note any changed circumstances in his or her explanation of why the employee is unable to work, it also urges employers to “exercise caution in doing so.” USDOL further points out that, in previous months, employees may not have been able to effectively care for their children while teleworking or may now choose to take leave because a co-parent is no longer available to provide care.
USDOL’s response to FAQ 91 concludes by stating that employers may discipline an employee who falsely represents that he or she qualifies for paid childcare leave under the FFCRA. The reality, however, is that the restrictions on the information that employers can request from employees greatly hampers their ability to root out paid leave abuses.
Employers will likely find that USDOL’s new FAQs are very helpful in determining most employee requests for paid childcare leave under the FFCRA. For those requests that fall outside the scope of these FAQs, it is prudent to seek the advice of counsel. If you have any questions, please contact Jessica Baquet at (516) 393-8292 or firstname.lastname@example.org.