Department of Labor Updates FFCRA Leave Guidance as Students Return to School

Recently, the Department of Labor (“DOL”) updated its Families First Coronavirus Response Act FAQs to address paid leave rights of employees under the FFCRA as students return to school. 

As discussed in a prior client alert, under the Families First Coronavirus Response Act (“FFCRA”), employees are entitled to two types of paid leave, Emergency Paid Sick Leave and Expanded FMLA, under certain circumstances, including to care for a minor child whose school or childcare is closed because of the coronavirus pandemic. 

The new FAQs, numbers 98, 99, and 100, are summarized as follows:

• FAQ 98 provides that if a child’s school is operating on an alternate day or other hybrid schedule where students are only permitted to attend school in person on certain allotted days, then parents are eligible to take paid leave under the FFCRA on days when the child is not permitted to attend school in person as long as the leave is needed to actually care for the child during that time and there is no other suitable person available to do so.  As discussed below, this guidance, providing that a parent may take FFCRA paid leave on each of the child’s remote learning days, expressly conflicts with prior guidance stating that a person is not entitled to intermittent paid leave.
• Under FAQ 99, if a parent has the option of choosing in-person or remote learning and opts for remote learning, the parent is not eligible for paid leave under the FFCRA because the school is open for the child to attend, but the parent simply elects for the child not to attend in-person.
• FAQ 100 provides that a person is entitled to paid leave under the FFCRA if the child’s school is completely remote to start the year.  However, as circumstances change, if a child’s school moves to a hybrid or fully in-person option, the parent’s entitlement to paid leave would change. 
  

The FFCRA regulations published by the DOL (see § 826.50) as well as other DOL FAQs (see FAQ 22, for example), provide that an employer and employee may agree to an intermittent leave plan, but otherwise an employee is not entitled to take intermittent paid leave.  FAQ 98 provides that a parent may take paid leave on a child’s remote learning days under a hybrid system (i.e. a child attends school in person on Monday and Wednesday, and attends school remotely Tuesday, Thursday, and Friday) without mention of such intermittent leave being by agreement with an employer. 

Without further clarification, the existing guidance puts employers in a difficult position in complying with the FFCRA paid leave provisions.  We will be sure to update you as further guidance is issued. 

Please contact a MacDonald Illig attorney if you have any questions regarding FFCRA compliance.