Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.

1.  Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?

It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.

Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.

The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).

  • Under the EPSLA:
    • An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
  • Under the EFMLEA:
    • An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
    • The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
    • An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.

In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.

2.  When does the FFCRA expire? Once it expires, does that mean my employees are no longer eligible for paid leave to care for a child whose school did not reopen?

The FFCRA expires on December 31, 2020, and at this time it has not been extended. Therefore, unless the FFCRA is extended, an employee who seeks under the FFCRA on or after January 1, 2021 will not be entitled to FFCRA leave. In addition, any requested FFCRA leave for which an employee is eligible must be completed by the FFCRA’s December 31, 2020 expiration date.

However, your employees may still be eligible for leave under applicable state and local leave laws, which have various sunset dates and may still apply into 2021. Since several regions of the US are currently experiencing a resurgence of COVID-19 (and no one can predict what the landscape will look like at the end of the year), employers should stay informed of possible extensions of applicable leave law dates, including the FFCRA’s expiration date.

3.  I have employees who have children enrolled in high schools that are only offering remote learning in the fall. Are those employees also eligible for paid leave to stay home with their high-school age children?

It depends on the age of their children and whether special circumstances apply. Under the FFCRA, if an employee is unable to work or telework because of a need to provide care for a child older than 14 during daylight hours, the employee will need to show that special circumstances exist requiring the employee to care for the child. Employees who need to care for children over the age of 18 may also qualify for FFCRA leave if special circumstances exist. A “special circumstance” includes a disability or another reason why the parent needs to provide care for that child while the parent would otherwise be working.

4.  If my employees qualify for paid leave under the FFCRA, will I end up footing the entire bill?

No. While employers must administer and pay FFCRA leaves, the federal government ultimately foots the bill for the paid leave, allowing employers to recover 100% of the amount paid to employees through tax credits and refunds. For more on FFCRA tax credits and refunds, see our prior blog here.

5.  How can I determine whether I am a “covered employer” under the FFCRA?

FFCRA applies to private sector employers who have fewer than 500 employees. Under the FFCRA:

    • You have fewer than 500 employees if, at the time the requesting employee’s leave is to start, you employ fewer than 500 full-time and part-time employees within the United States (which includes any state of the United States, the District of Columbia, or any territory or possession of the United States).
    • In making this determination, you should include employees on leave, temporary employees who are jointly employed by you and another employer (regardless of whether those jointly-employed employees are maintained on only your or another employer’s payroll), and any day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).
    • Workers properly classified as independent contractors under the FLSA are not considered employees for purposes of meeting the 500-employee threshold.
    • Employees who have been laid off or furloughed but who have not been reemployed do not count for purposes of meeting the 500-employee threshold.
    • Typically, a corporation, including its separate establishments or divisions, is considered to be a single employer and its employees must each be counted towards the 500-employee threshold.

6.  I’m not a covered employer under the FFCRA. Does that mean my employee is not eligible for paid leave if he has to stay home while his child is remote learning?

Not necessarily. As mentioned above, state and local leave laws may apply stating that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason to take leave, and several apply to employers who have more than 500 employees. For instance, the Los Angeles Supplemental Paid Sick Leave Ordinance order applies to employers who have more 500 or more employees in the City of Los Angeles or 2,000 or more employees in the US, and Seattle’s Paid Sick and Safe Time Ordinance applies to Seattle employees of private employers regardless of the number of employees the employer has. Both provide leave for employees who need to care for children whose schools have closed because of COVID-19.

7.  Considering the hybrid models many schools are offering (with students in school only part of the week and learning remotely from home the remainder of the week), I expect to have several employees who need to take EPSLA leave or EFMLEA leave intermittently to care for their child while the child is at home. Am I required to provide intermittent leave to my employees?

It may depend on your applicable jurisdiction. If your New York employees are asking for intermittent leave because they cannot work or telework while caring for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19, then you are required to provide intermittent leave to eligible employees under the EPSLA and EFMLEA in this scenario. If your employees are not located in New York, it’s not clear.

A little background may be helpful. Congress did not address the concept of intermittent leave in the FFCRA. Therefore, the US Department of Labor (DOL) filled in the gap by addressing intermittent leave in its regulatory authority. In its final rule providing guidance on interpretations of the FFCRA, the DOL narrowed an employee’s ability to take intermittent leave, requiring (1) that employers and employees agree to the intermittent leave, and (2) that if the employee is working at the employer’s worksite, intermittent leave can only be taken when the employee is caring for a child whose school, place of care or child care provider is closed or unavailable (as opposed to taking leave for other FFCRA-qualifying reasons that may pose a higher-risk of spread of COVID-19 in the workplace). The State of New York challenged this (and other) provisions of the DOL’s final rule. On August 3, 2020, a federal district judge in the Southern District of New York vacated the requirement that an employee secure employer consent for intermittent leave. (The judge also vacated three other provisions of the DOL’s final rule: the work-availability requirement, the definition of “health care provider,” and the timing requirement that documentation be provided to the employer before the employee takes leave.)

It is uncertain at this point whether the New York district court’s ruling will extend beyond New York. The State of New York did not specifically seek a nationwide injunction, and the district court was not clear with regard to the scope of its decision. Therefore, if the employees seeking intermittent leave aren’t subject to New York law, you may not be required to provide leave. Employers will need to monitor the DOL’s next steps. In addition, employers subject to state and local public health emergency laws that have expressly adopted provisions of the DOL’s final rule or have been interpreted as consistent with the DOL’s final rule should be aware of the possible impact of the New York federal court’s ruling on their leave obligations to their employees.

However, even if New York law does not apply to you, you may wish to consider allowing requesting employees to take leave intermittently if providing such leave will not negatively impact your business. Not only will this practice help you avoid running afoul of the New York federal court’s decision if it is determined to have nationwide scope, but it could help you retain good employees and increase employee morale, especially at a time when parents are scrambling to find viable options to both work and teach.

Notwithstanding these considerations, employers should note that if an employee can work “off” hours and still complete their regular job assignment, the employees are not considered to be “unable to work” for purposes of qualifying for paid leave under the FFCRA. For instance, if the employee and employer agree that the employee can work part of the morning and part of the evening to meet the employee’s job requirements, or work longer hours on certain days but not work on other days, the employee is not “unable to work or telework” under the FFCRA. In this circumstance, the employee will not be eligible for FFCRA-covered leave.

8.  Do I have to pay my employees for a continuous workday while they are teleworking if their telework schedule allows for intermittent work during the work day?

No. Notwithstanding the “continuous workday rule,” an employer who allows employees to telework flexible hours during the pandemic need not count as hours worked non-productive time between the employees’ first and last principal activities in a workday. For example, you and your employee may agree that the employee can work from home to care for a child whose school is closed for COVID-19 reasons, and can perform telework on the following weekday schedule: 7–9 a.m., 11:30 a.m.–3 p.m., and 7–9 p.m. You must compensate your employee for all hours actually worked that day—7.5 hours—but not for the non-work periods of 9-11:30 a.m. and 3-7 p.m. This schedule could allow an employee to help teach a child whose school is closed, while reserving work times for those times when the employee has the fewest distractions. Employers should be certain to require the employee to keep and provide accurate records when employees are working from home, including, but not limited to, when employees are working intermittent schedules.

9.  I have an employee whose child’s school has offered only two options: in-person learning five days a week and remote learning five days a week. My employee has requested leave under the FFCRA to teach her child remotely. Is she entitled to it?

Most likely, no. As mentioned above, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” If the school building is open and parents are invited to send their children to school, the school is likely no longer “closed” for purposes of the FFCRA-even if the school offers a remote learning option in addition to its in-person option. However, be sure to check applicable state and local law closely, because each may have different requirements related to a “closed” school. In addition, your employee may be entitled to leave under state and local law.

10.  What are some things I should keep in mind if I have employees who request leave under the FFCRA (or state and local leave laws) to care for their children who are remote learning?

  • Leave decisions should be made in a non-discriminatory manner. If all other things are equal, make sure not to deny a leave request for one employee while allowing leave to another (especially if the employee being denied leave is a member of a protected class under Title VII or analogous state/local human rights laws).
  • Many schools are setting hybrid options with a caveat: things can change quickly if there’s an outbreak in the school or even a rapid increase in COVID-19 positive numbers in the area. Be prepared to work with employees who have school-age students to the extent you can.
  • Given the possibility of the changes in school schedules, pay close attention to predictive scheduling laws. Moving work schedules around to accommodate employees that must stay home with children may require you to ask other employees to be more flexible as well. Predictive scheduling laws vary in their approaches but generally require employers to give notice to employees of their schedules somewhere between one to two weeks in advance. There can be fines and penalties for violations. Right now, Oregon has the only statewide predictive scheduling law, and there are six local laws, including some large cities such as San Francisco, New York City, Chicago, Seattle, Philadelphia. Be aware of predictive scheduling laws that may apply in your jurisdiction to ensure that you provide all employees with required notice of changes in scheduling.
  • Be flexible with employees if you can. You don’t want to lose your best employees because they have to work and take care of children as a result of schools being closed. Even if the FFCRA or state or local leave laws don’t apply, consider allowing employees to take other applicable paid leave, or even unpaid leave, to stay home to care for their children.

Now more than ever, employers are finding that flexibility allows for the resilience necessary to successfully guide their businesses and employees through the complications of the pandemic. For assistance with this and other employment law issues, contact your Baker McKenzie employment attorney.