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DOL Issues Guidance on FFCRA as Schools Reopen

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

On August 27, 2020, the U.S. Department of Labor (DOL) published three new “Return to School” FAQs providing guidance for employers and employees as schools reopen across the country. Specifically, the DOL clarified when employees may be eligible for leave under the federal Families First Coronavirus Response Act (FFCRA).

As a reminder, under the FFCRA, job-protected leave must be provided to some employees in order to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to the coronavirus. The newest FAQs address issues employers and employees are facing as schools reopen both virtually, as well as on a “hybrid” model. The DOL further provides guidance on situations where schools have reopened, but the parent chooses a virtual model for their child’s learning.

Scenario 1: School Remains Fully Remote

Many schools across the country (and most in California) are currently only offering remote learning. In FAQ 100, the DOL confirmed that parents are permitted to take paid leave under the FFCRA for as long as the school remains closed to in-person learning.

Scenario 2: School Reopens on a Hybrid Model

Under a hybrid model, a school is typically open, but students alternate between in-person and remote learning. Under FAQ 98, the DOL clarifies that parents are eligible to take paid leave under the FFCRA on days where the child is not permitted to attend school in person, and must instead engage in remote learning. FFCRA leave is not available, however, at times when the child is able to attend school in-person.

Scenario 3: School Reopens, but Parent Chooses Remote Option

Most schools offering in-person learning are also providing a virtual option for parents who are concerned about their child returning to school. The DOL clarifies in FAQ 99 that FFCRA leave is not available to take care of a child whose school is open for in-person attendance. It is worth noting, however, that if the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, paid leave might otherwise be available.

The full FAQ’s can be found here (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions). If you have questions as to whether FFCRA applies to you and your employees, and whether paid leave might be available, please contact your Weintraub Tobin labor and employment attorney for help.