With Labor Day upon us, many families are facing the start of a school year with remote or hybrid learning. As a result, many employees must figure out how to satisfy their work obligations while making alternate arrangements for childcare until schools reopens in-person. During this time, employers must keep in mind that the Family First Coronavirus Response Act (FFCRA) may provide paid leave to eligible employees struggling to arrange for childcare as the result of school closures.

As detailed in a blog post on March 19, 2020, the FFCRA was enacted at the outset of the Covid-19 pandemic, and provides for Emergency Paid Sick Leave (EPSL) and Expanded Family Medical Leave (EFMLA) for eligible employees who are unable to work for reasons related to the ongoing health pandemic. One such qualifying reason for leave is that the employee is unable to work due to a need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. To assist employers in determining whether an employee qualifies for FFCRA leave as the result of a school closure, the Department of Labor (DOL) issued several Q&As on August 27, 2020, elaborating on when a school is “closed” under the FFCRA and summarized below:

• When is a school “closed”? According to the DOL, a school that is conducting distance learning, but is closed to in-person attendance, is considered “closed” under the FFCRA. Likewise, a school that is open on a hybrid or alternate day basis is considered “closed” on the days when the child is unable to attend in person. Thus, an eligible employee will be entitled to leave where it is “actually” needed to care for the child when in-person attendance is not allowed, and “only if no other suitable person is available to do so.” 
• What if a parent has the option of choosing between in-person or remote learning? The DOL has stated that a child’s school is not “closed” if the child has an option for in-person attendance, and a parent chooses to enroll their child in remote learning. However, the DOL notes that “if, because of COVID-19, [the] child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, [the employee] may be eligible to take paid leave to care for him or her.” 
• Is a parent still eligible for FFCRA leave after a school transitions from remote learning to in-person attendance? The DOL has advised that parents are eligible for FFCRA leave while the child’s school remains closed, but that the continued availability of leave will depend on the particulars of the school’s operations.

In addition to this recent guidance, employers should keep in mind that an employee who is unable to work at their normal work site as the result of a qualifying school closure, but is permitted to telework (and is able to do so), is not “unable to work.” According to the Q&A, if an eligible employee is unable to perform those teleworking tasks or work the required teleworking hours because he or she needs to care for a child whose school or place of care is closed because of COVID-19-related reasons, then the employee is entitled leave. Conversely, if the employee is able to telework while caring for a child, then leave is not available.

Employers should also ensure that they are gathering the necessary documentation from employees taking FFCRA leave to justify the tax credit for paid EPSL and EFMLA. According to guidance from the Internal Revenue Service (IRS), such documentation for covered school closures includes:

1. The employee’s name;
2. The date or dates for which leave is requested;
3. A statement of the COVID-19-related reason the employee is requesting leave, and written support for such reason;
4. A statement that the employee is unable to work, including by means of telework, for such reason;
5. The name and age of the child (or children) to be cared for;
6. The name of the school that has closed;
7. A representation that no other person will be providing care for the child during the period for which the employee is receiving leave; and
8. With respect to the employee’s inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

Finally, while regulations from the DOL indicate that leave may be taken intermittently only with employer consent, a federal court in the Southern District of New York recently invalidated the DOL’s regulations requiring employer consent where intermittent leave is necessitated by a COVID-related school closure. That decision is discussed in more detail here. As a result, covered employers should tread carefully in denying intermittent leave requests where all other conditions for EPSL or EFMLA leave have been satisfied by the employee.

In sum, accommodating employees struggling with childcare as the school year begins may not only be advisable from an employee-relations standpoint, but required under the FFCRA. Employers should therefore be flexible in providing alternate work arrangement where possible, and consider whether employees unable to work notwithstanding these arrangements are entitled EPSL or EFMLA. As always, the attorneys in Miles & Stockbridge’s labor and employment practice are available to advise employers on their legal obligations in accommodating employee requests related to the COVID-19 pandemic.

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