New FAQs released by DOL on return to school issues under the FFCRA

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In anticipation of return to school issues that are bound to arise with so many schools currently implementing distance learning, on August 27, 2020, the Department of Labor (“DOL”) released new FAQs clarifying provisions in the Families First Coronavirus Response Act (FFCRA) related to childcare issues. The FFCRA provides that employees may receive paid leave if they need to miss work in order to care for a child whose school or place of care is closed, or childcare provider is unavailable, for Coronavirus reasons. The clarifications provided by these new FAQs are as follows:

  1. In a “hybrid” learning situation, where the school provides in-person classes some days and remote learning on other days, the DOL confirmed that paid leave under the FFCRA is available on days when the child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for their child during that time and only if no other suitable person is available to do so. As such, for purposes of the FFCRA, the school is “closed” on days that the child cannot attend school in person.
  2. For the situation in which the school provides parents with a choice regarding whether their children will attend school in-person or remotely, for purposes of the FFCRA, for days that the parent chooses the remote learning option, FFCRA leave is not available because the school is open for the child to attend and it is the parent’s choice to keep the child home. This is true even if the parent chooses the remote learning option out of concern that the child may be exposed to and bring home Coronavirus. However, FFCRA emergency paid sick leave could still be available if the child would not be able to attend school due to a quarantine or isolation order or because a health care provider advises the child to self-isolate or self-quarantine due to concerns related to COVID-19.
  3. Lastly, the FAQs address the common situation of schools who have started the school year with remote instruction, but have kept the possibility open of in-person instruction later in the year depending on how conditions develop. The DOL confirmed that as long as the school offers only remote learning, and to the extent that the parent does not have the option of sending their child to school, FCRA leave is available. But if there is later a transition to in-person instruction, that could disqualify the parent’s eligibility for FFCRA leave, as discussed above.

Although many questions remain regarding availability of FFCRA paid leave, these questions at least tackle a few timely issues that parents may find themselves considering in this transitory time.