In the webinar hosted on Wednesday, Aug. 12, Whitney Brown with Lehr Middlebrooks Vreeland & Thompson, P.C., covered some of the employment law-related issues that companies may face as kids go back to school across the country in the midst of COVID-19. To view the full webinar, click here.
Please note the guidance provided below only covers federal laws and your state or local laws may impose additional obligations. The information provided is not comprehensive but is a reflection of frequently asked questions.
FFCRA Refresher
The Families First Coronavirus Response Act (FFCRA) has two main components, the Emergency Family and Medical Expansion Leave Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSL).
The EFMLA provides 12 weeks of family and medical leave for a “qualifying need related to a public health emergency” while the EPSL is 80 hours of paid sick leave for specified coronavirus related absences.
The FFCRA covers all employers with fewer than 500 employees. Small businesses with 50 employees or fewer may qualify for an exemption if providing loss of childcare leave to the requesting employee would jeopardize their viability.
Any individual employed for at least 30 calendar days is eligible for EFMLA and all employees are immediately eligible for emergency sick leave.
For more information about FFCRA, click here.
Possible Situations
Please note the following hypothetical situations have not been precisely addressed by the Department of Labor at this time. Discuss any particular situation you are uncertain about with trusted employment counsel.
Employee School Choices
Situation: Your employee’s child’s school is closed. There is another school in the area at comparable cost and with open spaces. May I deny EFMLA/EPSL and tell the employee to enroll their child in the available option?
Response: No. Nothing in the FFCRA or regulations limits the entitlement based on the employee’s inability to find childcare. It is based on the employee’s previously chosen childcare option being unavailable.
Situation: My employee’s child’s school is offering the choice of full-time in-person or full-time virtual schooling this semester. The employee plans to elect the virtual option and stay home using EFMLA/EPSL. Are they allowed to do this?
Response: No. The school closure and loss of childcare leave depend on the status of the facility being open. If the facility is open, the employee’s choice does not make them eligible for leave.
Hybrid Schooling
Situation: My employee’s child’s school is going hybrid. The child has school Monday-Wednesday and virtual school on Thursday and Friday. Is the employee entitled to EFMLA/EPSL?
Response: Yes, for the virtual school days. New York employers should grant intermittent leave due to the New York v. DOL injunction. Other employers should do the same but may have more leeway denying intermittent leave.
Older Children
Situation: My employee’s only child is sixteen years old, in high school, drives and works. The high school he attends is doing all-virtual this semester. Is this employee entitled to EFMLA/EPSL?
Response: Not automatically. IRS guidance states employers may require explanations for why children over 14 need supervision during daylight hours.
Situation: My employee’s older child is sixteen years old, in high school, drives and works. The employee also has a ten-year-old. Both kids’ schools are all virtual this semester. Is this employee entitled to EFMLA/EPSL?
Response: Yes. You cannot mandate an older child to become a caretaker.
Class Closure
Situation: My employee’s elementary school child attended school in-person but due to the child’s teacher and teacher’s aide testing positive for COVID-19 that class has closed, and students are not permitted to attend. Is this employee entitled to EFMLA/EPSL?
Response: Likely yes. Those employees are in a school closure situation, even if the entire school has not closed. It is also possible that the employee could be advised by a physician to self-quarantine for 2 weeks to receive full pay under EPSL.
Telework and School Closure
Situation: An employee who is eligible for EFMLA/EPSL due to school closure or loss of childcare has requested to telework for half a day as she rotates childcare responsibility with her spouse. Am I required to agree?
Response: You’re not required to provide telework if it’s not readily available or suitable to the particular employee. However, you should not deny telework to force the employee to burn through EFMLA/EPSL faster. DOL encourages teleworking arrangements.
Employee Leave for Fear of COVID-19
Situation: You recently open a new location in an area with some foot traffic. An employee assigned there is increasingly fearful of catching COVID-19, despite ample precautions, and she’s asked to go on leave because it’s not safe. What should you do?
Response: Generalized fear of COVID-19 does not grant the employee any rights under federal law. Treat the matter as an employee relations issue.
Situation: An employee with COPD and diabetes, conditions that are recognized as having an adverse impact on the course of COVID-19. The employee discloses these conditions and asks for changes to their work assignment and/or leave. How should I proceed?
Response: The employee may be entitled to a reasonable accommodation under the ADA and/or leave under FMLA (serious health condition) or FFCRA. Consider the most viable solution on how to proceed.
