As school reopening conversations become more widespread, many employers and their employees are wondering what that means for their childcare? Various school districts are taking different approaches with regards to how schools will reopen in the fall. Either students will be full-time remote learning, in-person learning with the option to be remote or a hybrid with a combination of remote learning and in-person.
It will be critical to understand leave management obligations applicable to covered employers under the federal Families First Coronavirus Response Act (FFCRA) as well as state and local laws. Employers, once again, are going to be asked to adapt to the “new normal” when dealing with employees requesting leave.
The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. If a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.
In order to be eligible for this leave, the employee must be primarily responsible for the child’s care and another “suitable individual,” such as a co-parent, co-guardian, or the “usual child care provider,” must not be available to provide the care the child needs.
An employee who is out of work because they need to care for a child whose school or place of care is closed, or child care provider is unavailable, may be eligible for both Emergency Paid Sick Leave and Expanded Family and Medical Leave under the FFCRA. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave at 2/3 of the employee’s average regular rate of pay. This period covers the first ten workdays of Expanded Family and Medical Leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act. During any unpaid EFMLA, an employee may choose to substitute earned accrued paid leave provided by the employer (e.g., vacation or paid time off (PTO)). After the first ten workdays have elapsed, the employee would continue to receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.
COVID-19 has taken a toll on employees and employers alike and communication remains critical. Where flexibility exists, employers should plan ahead by facilitating discussions with their employees to learn how the school reopening plans may impact their work schedule, whether remote work is or remains an option, and whether any added flexibility to the schedule or intermittent leave may provide workable solutions.
If we can help you navigate this or any other issue caused by the pandemic as it relates to HR, employee benefits, payroll or more, please reach out.
