On Aug. 27, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) published three new frequently asked questions (FAQs) relating to the reopening of schools for workers and employers qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA).

The new FAQs outline qualifications for paid leave that are applicable to the various configurations and plans that schools have announced as they plan to reopen, including blending in-person with distance learning.

WHD provides this information to clarify the benefits and protections offered in both the FFCRA's paid sick leave and expanded family and medical leave provisions.

FFCRA overview.

The FFCRA requires certain employers (including those with fewer than 500 employees and government employers) to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Act helps businesses mitigate the financial costs of COVID-19 on workplaces by offering tax credits to reimburse the costs of providing employees with paid leave for COVID-19 related purposes.

According to the DOL, “FFCRA entitles certain employees to take up to two weeks of paid sick leave and take up to 12 weeks of expanded family and medical leave, 10 of which are paid for specified reasons related to the coronavirus.” An eligible employee may take both types of paid leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Clarifications related to schools reopening.

Since the Department has been faced with many requests for guidance on this topic, its purpose in releasing these FAQs is to help the public, schools, and employers understand eligibility for paid leave based on school closures and remote learning accommodations during the school year.

The FAQs released on Aug. 27, 2020, address whether employees qualify for paid leave when:

  • “A child attends a school operating on an alternate day basis;
  • A parent chooses remote learning when in-person instruction is available; and
  • A school begins the year with remote learning but may shift to in-person instruction if conditions change.”

See below for the DOLs clarifications to the criteria listed above.

A child attending a school operating on an alternate day basis.

This FAQ may apply if your school district is operating in the following manner:

  • Your child’s school is operating on an alternate day (or other hybrid-attendance) basis;
  • The school is open each day, but students alternate between days attending school in person and days participating in remote learning; and
  • Your child is permitted to attend school only on their allotted in-person attendance days.

The department states, “…you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.”

A parent chooses remote learning when in-person instruction is available.

This FAQ may apply for parents presented with the following:

  • A choice between having their child attend in person or participate in a remote learning program for the fall; and
  • Have signed up for remote learning due to the worry that their child might contract COVID-19 and bring it home to the family.

The DOL states that, “…you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance.”

You are not entitled to FFCRA paid leave for having the preference to keep your child at home.

If your child must stay home due to COVID-19, is under a quarantine order, or has been directed to self-isolate or self-quarantine by a health care provider, you may then be eligible for paid leave to care for the child. Read the DOLs FAQ 63 for more information on this situation.

A school begins the year with remote learning but may shift to in-person instruction if conditions change.

In the case that a school stays closed pending further review of local circumstances, the DOL states, “you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.”

For more information about FFCRA leave when the school resumes in person instruction or a blend of in person and remote learning, please see the two FAQs discussed previously.

Additional resources offered by the DOL that complement the guidance issued on Aug. 27, 2020, include:

Read more on this guidance here.

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Disclaimer: Please note that this is not all-inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding the specific application of the information to your own plan.