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How School Reopening Affects Paid Leave for Employees

The Families First Coronavirus Response Act (FFCRA) requires employers to give employees 2 weeks (80 hours) of paid leave if the employee cannot work because they have been quarantined due to COVID-19, are caring for someone who has been quarantined, have COVID-19 symptoms and are getting tested, or their child’s school or daycare is closed due to COVID-19.­

Employees who have children under 18 whose school or daycare is closed due to COVID-19 are also entitled to an additional 10 weeks of paid leave at two-thirds the employee’s regular rate of pay.

With schools reopening for the fall, the way a school chooses to reopen determines whether your employees qualify for paid leave. The United States Department of Labor has just issued some guidance for employers that discusses when employees are eligible for paid leave.

For example, if a school reopens with online/virtual learning only, the parent would be eligible for paid leave. But if the school gives parents a choice between virtual learning and in-person learning and the parent chooses virtual, the parent is not eligible for paid leave. If a school reopens with only virtual learning, but changes to in-person later on, paid leave might not be available. And if a school alternates between virtual days and in-person days, paid leave is available, but only on remote learning days.

Here is the specific guidance from the United States Department of Labor:

The school my employee’s child attends is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. Is my employee entitled to take paid leave under the FFCRA?

Yes, your employee is eligible for paid leave under the FFCRA on days when their 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. For purposes of the FFCRA, the school is effectively “closed” to the employee’s child on days that he or she cannot attend in person. The employee can take paid leave under the FFCRA on each of their child’s remote-learning days.

The school my employee’s child attends is giving parents a choice between having their child attend in person or participate in a remote learning program for the fall. My employee signed up for the remote learning alternative because, for example, they are worried that their child might contract COVID-19 and bring it home to the family. Since the employee’s child will be at home, is the employee entitled to take paid leave under the FFCRA?

No, your employee is not eligible for paid leave under the FFCRA because their child’s school is not “closed” due to COVID–19 related reasons; it is open for the employee’s child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If the employee’s child is home not because his or her school is closed, but because their parent has chosen for the child to remain home, the employee is not entitled to FFCRA paid leave.

The school my employee’s child attends is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. Is my employee entitled to take paid leave under the FFCRA?

Yes, your employee is eligible for paid leave under the FFCRA while their child’s school remains closed. If the school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See the two questions above.­

Published: 08/28/2020

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