Maria Dwyer of Clark Hill.
As kids, parents, teachers and educational institutions approach the start of a new school year, there are still many questions about exactly what school might look like in the midst of the COVID-19 pandemic. The many private and public educational institutions across the nation are taking different approaches with regard to how schools will operate this school year. These plans can generally be organized into the following categories: full-time remote learning; in-person learning with an option for remote learning; and hybrid learning scenarios, with a combination of remote learning and in-person instruction.
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What does this mean for employers? It will be critical to understand leave-management obligations applicable to covered employers under the federal Families First Coronavirus Response Act (H.R. 6201) (the act) that was passed by the Senate and signed by the president in March 2020. The act expands the protections under the Family Medical Leave Act (FMLA) and requires many private and all public educational institutions to provide significant amounts of paid leave related to COVID-19.
Are school personnel entitled to FFCRA leave for their own childcare issues?
At the end of August 2020, the Department of Labor issued responses to various frequently asked questions (FAQs) relating to the use of FFCRA leave in the context of educational institutions resuming school under the different approaches (remote/virtual, hybrid or in-person). When an employee's child's school is remote only, the employee is entitled to leave; however, when the employee's child's school is hybrid, or when in-person is available, the answer becomes more complex.
Can an employee take FFCRA leave if the employee's child's school is using the hybrid approach?
An employee may take paid leave under the FFCRA on each of his/her child's remote-learning days. This scenario essentially contemplates child-care obligations from the home. The employee is required to be at work on those days when the employee's child is engaged in in-person learning. This type of leave is akin to an intermittent leave use.
- Can an employee take FFCRA Leave if the child's school is open, but the employee opts-out of in-person instruction?
An employee is not eligible to take paid leave under the FFCRA if the school is open for his/her child to attend in-person. Said another way, if an employee's child is home not because the child's school is closed, but because the parent/employee has chosen to keep his/her child home, the employee is not entitled to FFCRA paid leave. However, if, because of COVID-19, an employee's child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, or because of the child's own illness with COVID-19, the employee may be eligible to take paid leave to care for the child under quarantine.
Are spouses working for the same employer each entitled to 12 Weeks of EFMLEA of EPSLA?
The FMLA "marriage penalty" does not apply to the FFCRA because the act does not address this issue. The rule that narrows FMLA usage for spouses who work for the same employer is statutory and only applicable to certain types of FMLA leave.
Next steps For educational institutions
The act continues to have significant financial and administrative obligations for educational employers during these difficult times. The act will remain in effect through Dec. 31, unless extended by the Secretary of Labor.
We wish our educational institutions and its workforce and students a healthy and successful school year.
Maria Fracassa Dwyer is the member-in-charge of Clark Hill's Detroit office. She focuses her practice on employment defense litigation and counseling. Dwyer is a trusted adviser to senior management across a wide range of industries including public and private employers.
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