A growing number of public and private schools are in the process of announcing plans for the fall 2020 school term. In many jurisdictions, students will only attend school in person on a reduced or alternating schedule, supplemented by remote learning. As a result, countless parents will be required to balance the need to care for their children with the need to earn a living. Meanwhile, employers will face thorny issues relating to employee leave and teleworking, especially including the new federal leave requirements imposed by the Families First Coronavirus Response Act.

Under the FFCRA, private employers with fewer than 500 employees as well as public employers (such as municipalities) are required to provide paid leave in certain circumstances. Most relevant to this article, eligible employees are entitled to up 12 weeks of paid leave if “unable to work [or telework] due to a need to care for his or her Son or Daughter whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19.” Such leave must be paid at no less than two-thirds of the employees regular rate but no more than $200 per day.

The U.S. Department of Labor has clarified that a school is “closed” for purposes of the FFCRA so long as its physical location is closed. The DOL further stated that “[t]his is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.”

Employers are likely to face many other unique scenarios caused by remote learning. Below are answers to some questions that are likely to arise:

• An employee previously took 6 weeks of FFCRA leave to care for a child in April and May. How much leave are they entitled to take once school resumes? 
   
  • A maximum of 6 weeks (assuming the employee has not previously used other FMLA leave). Expanded FMLA leave under the FFCRA is capped at 12 weeks total.
     
• What information can I request from the employee to substantiate a request for leave? 
   
  • You may request (1) a statement of the qualifying reason for the request, (2) an oral or written statement that the employee is unable to work because of the reason, (3) the name of the son or daughter being cared for, (4) the name of the school that has closed, and (5) “[a] representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes [leave].”
     
• An employee has been teleworking productively since March but now says they need to take leave to care for children whose school has been closed. May I require the employee to identify the changed circumstances that require them to take leave now?
  • The DOL has said employers should exercise caution in asking “the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.” Therefore, employers should defer to the employee’s representation that they are unable to work. 
     
• Are there any exceptions to the FFCRA?
  • Yes. Employers with fewer than 50 employees are not required to provide leave for school closings if the leave would “jeopardize the viability of the business as a going concern.” 
     
  • Additionally, employers of employees who qualify as “emergency responders” or “health care providers” may assert an exemption to all leave required  under the FFCRA.
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• Will employees be entitled to use FFCRA leave if remote learning continued into 2021?
  • No. The FFCRA expires on December 31, 2020.