** UPDATE ** See our Sept. 15, 2020 blog post for a more recent update on FFCRA
As schools open for the new academic year, employees continue to struggle with the essence of work-life balance. Many employees need to work to maintain their income while also supporting school-age children who are attending school remotely.
The Families First Coronavirus Response Act (FFCRA) provides for emergency paid sick leave and extended family care paid leave (up to statutory limits) to assist parents in many of these circumstances. Some employers thought about FFCRA as applying in the spring and may have forgotten about it over the summer, but the FFCRA applies through December 31, 2020.
The federal Department of Labor just issued new FAQs (#98-100) that directly address FFCRA as it applies to a hybrid model of schooling, when the school has some days that are open for in-person learning and some days devoted to remote learning. The application of FFCRA in that case may surprise you.
There are four possible scenarios to consider:
First, the situation you will remember from the spring: the employee’s child’s school is only offering remote learning. FFCRA paid leave is available if the employee has to actually care for the child and no other suitable person in the home is available. The employee is eligible for 80 hours of emergency paid sick time (maximum of $511 per day) and a subsequent ten weeks of extended family leave (maximum of $200 per day), assuming your employee has that amount of family leave available. This FFCRA leave is paid by the employer, and tax credits are available.
Second, if the school is open for in-person learning, the employee is not eligible for FFCRA paid leave to take care of the child because of school closure.
Third, the child’s school is open as a hybrid model. Some days are in-person learning and some days are remote learning, as determined by the school. The employee is able to obtain the FFCRA paid leave on days when the child is not permitted to attend school, and must engage in remote learning, assuming the leave is to care for the child and no other suitable person is available in the home.
Fourth, if the child’s school gives the family the option for either in-person learning or remote learning, then the DOL states that FFCRA paid leave is not available for the employee because the school is not “closed.” That would be true even if the employee chooses to have the child stay home and engage in remote learning.
Remember that there are many other issues with the application of FFCRA, such as the other defined ways that FFCRA applies and requires a paid leave, exceptions for health care providers, emergency responders and small businesses, and the shorter time period needed to qualify for the extended family leave part of the law. You can refresh your understanding of the law by clicking here.
The DOL issued these recent FAQs to clarify the application of the FFCRA to the varied school scenarios that employees have to face, and that will certainly change over the course of this school year.
For more information, contact John Baum, firstname.lastname@example.org, (415) 835-9006. He is a partner in the San Francisco office of Hirschfeld Kraemer LLP.