On August 27, 2020, the U.S. Department of Labor (“DOL”) issued further guidance through its FAQ’s addressing certain scenarios related to school closures, partial school closures and remote learning.
You may recall that the Family First Coronavirus Response Act (“FFCRA”) provides 10 weeks of paid leave, and up to 12 weeks of total extended Family Medical Leave Act ("FMLA") leave, to employees caring for their children whose school or childcare center is closed or care provider is unavailable due to COVID-19 related reasons. The DOL further clarified whether employees qualify for paid leave when a child attends a school that operates on alternate days, when an employee-parent chooses remote learning despite available in-person instruction, and when a school begins the year with remote learning but may move to in-person instruction.
Does an employee qualify for paid leave if their child attends a school that is operating on alternate days?
Yes. Employees can take paid leave on the days that the school requires remote learning and no other suitable person is available to care for their child during that time. The schools are considered “closed” to students the days the students cannot attend in person.
Can an employee qualify for paid leave when they choose remote learning if their child's school offers in-person instruction?
No. Since the school is open for in-person attendance, it is not “closed” as required by the FFCRA. Employees are not eligible for paid leave under the FFCRA when their child’s school is open.
Is paid leave available to an employee if their child’s school begins with remote learning but may evaluate the local circumstances and decide to open the school later in the school year?
Yes, employees are eligible for paid leave under the FFCRA during the time that the school is engaging in remote learning. If the school opens, paid leave under the FFCRA may be available depending on the circumstances.
The DOL has an online tool for employees to determine their paid leave eligibility. A tool for employers is "coming soon".
The DOL's FAQs provide more guidance.