On August 27, 2020, the Department of Labor (DOL) published new guidance that explains employee eligibility for paid leave under the Families First Coronavirus Response Act (FFCRA) relative to the varied formats and schedules schools have announced as they reopen, including blending in-person with distance learning.

As you recall, the FFCRA allows certain employees to take up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave (the latter 10 of which are paid) because the employee is needed “to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”

The three new frequently asked questions (FAQs) clarify the following:

FAQ 98. When their children’s school is operating on an alternate day or other hybrid-attendance basis (meaning that school is open each day but students alternate between days attending school in person and days participating in remote learning), employees are eligible to take FFCRA paid leave on the days their children are not permitted to attend school in person and are instead engaged in remote learning. Like all other situations in which FFCRA leave is taken for these purposes, the employee must actually be needed to care for his/her child during that time and there must be no other suitable person available to do so.

FAQ 99. If their children’s school gives a choice between in-person attendance or remote learning and employees choose the remote learning option (for whatever reason), they are not eligible for paid leave under the FFCRA. In those circumstances, the school is not “closed” due to COVID-19 related reasons; it is open for the employee’s child to attend and the child is home because the employee or his/her family elected to do so. This is true even if the employee elected the remote learning option because of concerns about the child contracting COVID-19. (Note, however, that if the child is under a quarantine order or self-isolation directive from a healthcare provider, the employee may be eligible to take up to 80 hours of paid leave to care for him/her.)

FAQ 100. Employees are eligible to take FFCRA paid leave when their children’s schools begin the year via remote learning but plan to re-evaluate local conditions and may convert to in-person attendance in the future. If and when that change happens, employee eligibility for FFCRA paid leave would be as described in FAQ 98 and FAQ 99.

The takeaway from all of this is that the world is changing. Schools that have reopened fully in person may be forced to switch to exclusively remote learning if an outbreak occurs, and–as FAQ 100 indicates–those that have started the school year with remote learning (or a hybrid approach) may move to in person learning later in the semester if virus conditions improve. Employers should be sure to comply with the law and remain in contact with employees who are utilizing FFCRA leave to adapt as necessary when circumstances change.

By Rebecca D. Bullard, rbullard@dsda.com