The Department of Labor (DOL) continues to issue guidance related to the leave provisions of the Families First Coronavirus Response Act (FFCRA) via its frequently asked questions (FAQ). In its latest additions, posted on Aug. 27, 2020, the DOL addressed a few topics that continue to draw questions with many schools reopening or set to do so in the very near future.
As a reminder, the Emergency Family and Medical Leave Expansion Act (E-FMLA) provision of the FFCRA requires private employers with fewer than 500 employees — and also most public employers — to provide up to 12 weeks of E-FMLA if the employee is "unable to work 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." 29 CFR § 826.20(b).
Given the different levels of opening for many schools (e.g., all in-person learning, all remote learning, hybrid model) and the different options that many schools are offering to parents, we have received many questions about whether the E-FMLA provision applies in the different scenarios. According to the DOL's new guidance, a school is effectively "closed," and thus an employee may be eligible for E-FMLA, on days where the employee's child cannot attend in person for reasons related to COVID-19.
For example, where a school is using a hybrid (or alternate-day) model and the employee's child has in-person learning on Monday and Tuesday but remote learning the rest of the week, the employee may be eligible for E-FMLA on Wednesday, Thursday, and Friday because the school is effectively "closed" to the child on those days.
However, where a school allows for parents to elect either in-person learning or remote learning, an employee is not eligible for E-FMLA where the employee selects the remote learning option for the employee's child. In that scenario, the employee's child can attend school in person, but the employee chose not to select that option. In other words, the school is not effectively "closed" in that scenario.
Please see this Taft update for a much lengthier discussion on the many facets of the DOL's FFCRA final rule and regulations, including more nuances related to E-FMLA eligibility.
Unfortunately, the DOL's recent FAQ activity did not address the ambiguities created by the opinion out of the Southern District of New York in early August, which struck down certain aspects of the DOL's Final Rule. That court's opinion affected four discrete aspects of the Final Rule: (1) the work-availability requirement; (2) the definition of "health care provider"; (3) the requirement for employer consent to intermittent leave; and (4) the requirement that documentation be provided before taking leave. As of the date of this update, the DOL has not issued any further guidance, appealed the Southern District of New York opinion, or taken steps to amend its Final Rule to address the court's opinion. Please see this Taft update for a full discussion of that court's opinion and its impact on the FFCRA.
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