By Kathryn M. Hindman
The US Department of Labor’s Wage and Hour Division updated its Family First Coronavirus Response Act (FFCRA) Questions and Answers
on August 27, 2020, to provide guidance to parents with school-aged children in anticipation of the start of the school year. As a reminder, the FFCRA allows certain employees to take up to two weeks of emergency paid sick leave and up to 12 weeks of expanded Family and Medical Leave, 10 of which are paid, "because of a need to care for the employees son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.“ Given the differences among school districts throughout the country on whether or not school will be physically open, on-line classes only, or a combination of the two (hybrid learning), the DOL updated its guidance to answer return-to-school questions (FAQ 98 -100).
If the school has moved to a “hybrid” model in which students are required to attend school in person some days, and engage in remote (typically online) on other days, the DOL has determined that the school is effectively “closed” to the child on days when they cannot attend in person. Under this hybrid model, the DOL has clarified that eligible employees may take FFCRA leave on any day in which their child is not permitted to physically attend school and is instead engaged in remote learning. (FAQ 98).
If the school provides parents with a choice between learning in school or remote learning, the DOL has determined that the school is not considered “closed” due to COVID-19 related reasons. The voluntary choice to remain home when school is open means the parent/employee is not eligible for FFCRA leave. (FAQ 99). DOL also reminds us, however, that if because of COVID-19 the child is under quarantine or has been advised by a healthcare provider to self-isolate or self-quarantine, the parent/employee may be able to take emergency paid sick leave to care for the child. (FAQ 63).
School Closed and May Reopen Later
If the student’s school is closed out of concern for COVID-19 and instead is offering remote-only learning, the school is considered to be "closed" and the parent/employee is eligible to take FFCRA leave. (FAQ 100). If the child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school operations (e.g., if the school decides to open for in-person attendance or a hybrid model as explained in FAQ 98 & 99).
Intermittent School Closure Leave
Although the most recent changes to the FAQs don’t mention this, remember that DOL has already advised us that parents may take FFCRA school closure leave intermittently, but only if the employer agrees (FAQ 20-22).
OFLA Sick Child Leave Includes School Closure Leave
Employers are also reminded that the definition of "sick child" leave under the Oregon Family Leave Act (OFLA) currently includes absences "to care for an employee's child whose school or place of care has been closed in conjunction with a state wide public health emergency declared by a public official.” In other words, if your employee is eligible for OFLA, they may also take time off during a school closure to care for the child. Any such OFLA leave runs concurrently with the FMLA . Although this expanded definition of “sick child” originally was slated to end on September 13, 2020, the Oregon Bureau of Labor and Industries (BOLI) has provided notice to make this expansion of OFLA permanent.
As always, our team at Bullard Law is here to help if you have any questions.
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