DOL Updates to FFCRA Eligibility Considering Children Returning to School
Aug 31, 2020
Written by Joseph J. Perkoski and John “Jack” Klinker
On August 27th, the U.S. Department of Labor (DOL) updated its Families First Coronavirus Response Act (FFCRA) guidance to address nagging questions on the applicability of the leave-in remote learning variations as students return to school in the fall. The new guidance effectively provides for intermittent leave for childcare in some hybrid learning scenarios.
Generally, under FFCRA, parents may be entitled to Emergency Family and Medical Leave Expansion Act (EMFLEA) leave where they have been employed by an employer for at least thirty (30) days, their child’s school or regular place of care is closed or unavailable due to a COVID-19 related reason, and there is no other suitable person who can care for the child. Employees who are eligible for EFMLEA leave can take up to twelve (12) weeks of leave. The first two (2) weeks of EFMLEA leave is unpaid, while any remaining weeks must be paid at two-thirds of an employee’s regular rate of pay or minimum wage, whichever is higher, up to $200 per day or $2,000 total.
The DOL’s recent update addresses whether a child’s school is deemed closed or unavailable in or hybrid instruction models being offered. In particular, the guidance provides that, where a child is participating in a hybrid learning model requiring his or her attendance at school on certain days while requiring his or her participation in remote learning on other days, the child’s school is considered unavailable for the days he or she is required to engage in remote instruction. Similarly, the guidance notes that a school is unavailable where it offers only remote instruction. Therefore, under both these circumstances, so long as a parent would otherwise qualify for EFMLEA leave, then he or she is eligible to take leave on days when his or her child is engaged in remote learning. At the same time, the new guidance provides that if in-person instruction is offered, but a parent elects for his or her child to participate in remote instruction instead, then the parent is not eligible for EFMLEA leave.
For assistance with interpreting and applying DOL’s FFCRA guidance to your institution, please contact your Robbins Schwartz attorney.