Across Connecticut, many students are returning to hybrid instructional models this week. This raises the question for employers, including school districts, of whether these schools are "closed" for reasons related to COVID-19 on remote learning days, and, if so, whether employees are entitled to paid FFCRA childcare leave on an intermittent basis on those days. This also raises the issue of what leave, if any, employees are entitled to if they voluntarily decide not to send their children to school. Recent guidance from the U.S. Department of Labor ("DOL") provides clarification on all of these issues.

As to hybrid schedules, the guidance clarifies that, when schools implement a hybrid model in which students attend in person some days, but not others, schools are "closed" for FFCRA purposes on the days that students are required to learn from home. Thus, whether the hybrid model is an alternating-day approach or alternating-week approach, the student's school is "closed" on the days the students are learning from home.

If a parent voluntarily decides not to send their child to school, and chooses a remote learning option instead, then the DOL's guidance indicates that the school is not "closed" due to COVID-19 reasons. Therefore, the parent is not entitled to FFCRA leave.

The FFCRA did not explicitly address the use of intermittent childcare leave due to schools being "closed." The DOL's implementing regulations, however, allowed the use of intermittent leave in any increment of time agreed to by the employer and the employee. Thus, although the DOL allowed intermittent leave in the regulations, it was balanced by the requirement that employers consent to its use.

On August 3, 2020, however, in New York v. United States Department of Labor, a federal district court judge in the Southern District of New York vacated several provisions of the FFCRA regulations, including the regulation that required employer consent for the use of intermittent leave. As a result, the balance created by the DOL's regulations was displaced, allowing employees the right to simply request intermittent leave whenever they need to due to a COVID-19 related school closure. The court did not address the national implications of its ruling explicitly, but because it based its ruling on Section 706(2)(c) of the Administrative Procedures Act, which allows a federal court to "hold unlawful and set aside" any agency actions found not to be in accordance with the law or in excess of statutory authority, the ruling appears to apply nationwide.

The position that the court's ruling applies nationwide was bolstered by the DOL's recent guidance, which states that an employee is eligible to take FFCRA leave on the days his or her child's school is "closed" and therefore the child must engage in remote learning. Of course, any request for such leave must still comport with the other requirements for such leave. Specifically, (1) the employee must need the leave to actually care for his or her child during that time, and (2) there must be no other suitable person available to provide care for the child. In addition, an employee's FMLA+ leave entitlement is reduced by any prior FMLA use in last 12-month period. Thus, if an employee has taken 8 weeks of FMLA leave already, the employee would only have 4 weeks left for FMLA+ leave.

As a reminder, the FFCRA provides both EPSLA and FMLA+ leave for childcare reasons. Employers should be mindful of how those separate leave provisions interact and overlap, and how they relate to employers' current leave policies and any relevant collective bargaining agreements. Employers with questions regarding how an employee may substitute or supplement FFCRA leave with other leave that may be available should seek legal counsel.

We will continue to update,, and our firm's COVID-19 Resource Center with any developments in this area.

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