Department of Labor Clarifies Guidance on Use of FFCRA Leave for Various Types of School Re-Openings

As we previously summarized, the FFCRA allows parents to take up to 12 weeks of subsidized leave if their child’s school or place of childcare is closed due to the COVID-19 pandemic.

The Department of Labor (DOL) has now updated its Frequently Asked Questions (FAQs) to clarify the circumstances under which employees may take emergency childcare leave under the Families First Coronavirus Response Act (FFCRA) in the case of remote and hybrid school re-openings, which include both classroom and remote learning. This updated guidance took effect on September 16, 2020 and was issued in response to a New York district court’s decision that invalidated portions of the DOL’s temporary rule.

Updated Guidance Relating to School Re-Openings

The new FAQs specifically address when an employee is entitled to take FFCRA leave in the following school reopening situations:

• Remote Only
  Does an employer have to provide FFCRA childcare leave to an employee whose child’s school is fully remote?
  
  Yes. An eligible employee is entitled to take FFCRA leave to care for the child; however, an employer is permitted to ask an employee to explain any special circumstances that would necessitate such care for children between the ages of 15 and 17.

• Choosing Remote
  Does an employer have to provide FFCRA childcare leave to an employee who chooses remote instruction when in-person school instruction is available?
  
  No. An employee may not take FFCRA childcare leave because the school is not actually “closed” due to COVID-19.

• Hybrid Model
  Does an employer have to provide FFCRA childcare leave to an employee whose child’s school has instituted a “hybrid” attendance model that combines classroom and remote learning, and that model is the only option available?
  
  Yes. An eligible employee may take FFCRA childcare leave on remote learning days. The DOL has reasoned that each day of school closure constitutes a “separate reason for FFCRA leave that ends when the school opens the next day.”  

Additional Key Takeaways:

• Intermittent Leave
  An employee may take either paid sick or expanded family and medical leave under the FFCRA on an intermittent basis only with employer consent. (Of course, as discussed above, if your child’s school has a hybrid learning model, the use of leave is not considered “intermittent.”)
  
  
• Teleworking
  An employer cannot deny a childcare leave request solely on the basis that the employee has been teleworking productively since schools closed last March. In addition, although employers may require the employee to provide qualifying reasons for the leave, including any changed circumstances, the DOL explicitly noted that employers “should exercise caution” in making such inquiries so they do not improperly interfere with an employee’s right to take leave. 

• Office Closures
  If an employee is currently not working due to an office closure, the employee may not request FFCRA leave since there is no “work” from which the employee is taking authorized leave. The DOL clarified that emergency paid sick leave and expanded family and medical leave under the FFCRA may only be taken if the employee has work from which to take leave.
  

• Health Care Providers      
  The DOL has revised the definition of “health care provider” to include “only those employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

Employers with questions about the new guidance and its impact on their businesses are encouraged to reach out to Jacqueline Piscitello at [email protected] to ensure proper legal compliance.

 

Jacqueline Piscitello has nearly 25 years of legal experience and has been a partner with Outside GC since 2005.  Jackie has experience in a wide range of areas, including advising on sophisticated employment and labor matters, technology, litigation and dispute resolution, as well as a variety of general corporate and governance matters.