By: Jill E. Hall
Just in time for schools to reopen, the Department of Labor has released additional guidance explaining when employees are entitled to leave to care for children whose schools will remain at least partially closed due to COVID-19. The Families First Coronavirus Relief Act (“FCCRA”) provides up to 12 weeks of partially paid leave for employees to care for a child whose school has closed due to COVID-19. With schools across the country operating under a myriad of reopening plans, the DOL has clarified when a school is “closed” for purposes of the FFCRA leave entitlement. The guidance provides that employees are entitled to leave when schools are closed to in-person instruction as explained in three questions and answers.
First, if a school is operating on an alternate day or some other hybrid attendance basis, the school is “closed” on the days when a child is not permitted to attend school in person and must engage in remote learning. For example, if a school is open five days a week but requires students to alternate between in-person and remote learning, an employee is entitled to leave if caring for a child only on the days the child is required to engage in remote learning.
Second, if a school offers parents a choice between in-person and remote learning, a parent who elects remote learning is not entitled to FFCRA leave. This is because the school is not “closed” due to COVID-19 reasons.
Third, and most basic, if a school is completely closed to in-person instruction, leave is available until such time as the school reopens.
An employee is entitled to leave to care for a child whose school has closed due to COVID-19 only when the employee is needed to care for the child. Further, the leave is limited to a total of 12 weeks and currently is set to expire on December 31. Many employees may have exhausted some or all of the leave when schools were closed in the spring. There has been no indication that employers will be required to provide additional leave under FFCRA. Of course, employers are free to provide additional leave to employees once FFCRA leave is exhausted, but any tax credit claimed with respect to FFCRA leave would not be available to the employer.