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COVID-19: New Guidance Issued on Paid Leave as Schools Open

Published on

August 31, 2020

Going into the beginning of the school year, one of the most frequently asked questions to our team was how virtual or part-time school would affect eligibility for paid leave under the Families First Coronavirus Response Act (“FFCRA”). Recall that the FFCRA requires employers with fewer than 500 employees to provide up to 12 weeks of job-protected paid leave to care for a child due to school or childcare closures unless telework is feasible. But if schools are taking a “hybrid” approach or giving parents options, it was unclear whether that constitutes a qualifying reason for FFCRA leave.

The Department of Labor has now amended its Frequently Asked Questions to address the uncertainty:

  • Alternating days/hybrid learning: In FAQ #98, the DOL clarified that if the school district only permits students to attend school in-person part-time (with remote schooling on other days), FFCRA leave is available for caregivers if no other suitable person is available to provide childcare. Employers should obtain a certification to this effect from the employee seeking leave.
  • Parental choice of virtual where in-person instruction is available: FAQ #99 confirms that FFCRA leave is not available if school is open and available for in-person instruction, even if parents choose a virtual option. The guidance notes, however, that if the child cannot attend school due to a quarantine order or advice from a health care provider, the employee caregiver may be FFCRA-eligible. Employers should obtain a certification from the employee with the name of the healthcare provider and, if possible, a medical note confirming the child’s status.
  • Schools changing approaches during the school year: FAQ #100 clarifies that leave eligibility may change as school district’s approaches change. If a school starts virtually but then changes to in-person instruction, an employee is FFCRA-eligible only until the change, and presumably, vice versa.

If you have any questions regarding the Department’s guidance on FFCRA, please contact me or any member of the Barley Snyder Employment Practice Group.

DISCLAIMER: As we face an unprecedented time of legal and business uncertainty, we are working to provide updates on the status of important legal news related to COVID-19. It is important to note that the situation is changing rapidly and the information provided in our alerts is not intended to create an attorney-client relationship. The information contained in our alerts is for general informational purposes only and should not be construed as legal advice or a substitute for legal counsel. If you have questions about your legal situation or about how to apply information contained in this alert to your situation or about how any other information found on our website may affect your business, you should reach out to one of our attorneys. We assume no responsibility for the accuracy or timeliness of any information provided herein or by any linked site. As information changes rapidly, users are strongly advised to verify any information before relying upon it.

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