The Department of Labor updated it’s FAQ and answered a timely question of whether distance/virtual learning renders a school “closed” for the purposes of the FFCRA Leave. As explained in detail below, employees can take leave in order to care for a child when a school is closed for reasons related to COVID-19. The question becomes, is a school closed when there is virtual learning and the teachers are teaching?
The DOL explicitly answers this question with a very clear…YES! It follows that employees may be eligible for leave in order to care for a child when the school is operating in whole or in part virtually.
The FAQ reads as follows:
#70: My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
Yes. If the physical location where your child received instruction or care is now closed, the school or place of care is “closed” for purposes of paid sick leave and expanded family and medical leave. This is true if some or all instruction is being provided online or whether, through another format such as “distance learning,” your child is still expected or required to complete assignments.
Employers need to beware: If a school if remote completely, or partially, employees may be eligible for FFCRA Leave.
…Let’s do a quick FFCRA Leave Refresher…
There are two laws that must be assessed when assessing leave due to a school closure- the Emergency Paid Leave Act (“EPLA”) and the Emergency Family Medical Leave Expansion Act (“EFMLEA”). If an employee presents the requisite information, they may be eligible for both.
Emergency Paid Sick Leave Act
- All employees are eligible for EPSLA. There is no duration of employment requirement.
- Amount of Leave
- EPSLA allows for individuals to take two (2) weeks of paid leave for any of the seven (7) outlined qualifying reasons.
- Qualifying Reason for EPSLA
- In order to obtain EPSL, the individual must put forth a qualified reason for the leave. The Regulations allow for an individual to take Emergency Paid Leave (“EPSL”) when the individual is:
[c]aring for a son or daughter whose School or Place of Care is closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or Place of Care, or the Child Care Provider of such [child] is unavailable for reasons related to COVID-19.
NOTE: This blog focuses solely on leave related to a school closure, not when a Place of Care is closed.
It is important to remember an employee may only take the EPSLA leave when the care for the child interferes with the employee’s ability to perform work either at the normal workplace or teleworking. So, if an employee is able to telework while the child is attending virtual school, then that employee is ineligible for the EPSLA leave.
- Amount of Pay
- The Federal Regulations are clear that when an employee takes EPLSA leave due to school closure, they are to be paid 2/3 the regular rate of pay. (This is the same under the EFMLEA)
Emergency Family Medical Leave Expansion Act
Employees may also be eligible under the EFMLEA. Under this law, employees can take a total of 12 workweeks of leave during any 12-month period for any of the reasons outlined in the Family Medical Leave Act (“FMLA”), and also for a qualifying need related to a public health emergency (“EFMLEA Leave”)
- Eligible Employee
- In order to be eligible for the EFMLEA leave, an employee must be employed for at least 30 calendar days by the employer.
EMPLOYERS BEWARE: The regulations include that eligible employees include those who were: (1) laid off/termination on or after March 1, 2020, (2) rehired or otherwise reemployed by the employer on or before December 31, 2020, and (3)had been on the employer’s payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off/terminated.
- Qualifying Reasons for EFMLEA Leave
- An individual may take EFMLEA leave when they are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to a public health emergency.”
- Benefits Under EFMLEA
- Under the EFMLEA, the first ten (10) days are unpaid. Any days beyond the first ten days that the employee is eligible for under EFMLEA must be paid at 2/3 the regular rate of pay.
- Interplay of EFMLEA Leave and FMLA Leave
- Employees are entitled to a total of 12 weeks of EFMLEA and FMLA leave. It follows that an individual’s ability to take EFMLEA leave depends on how much FMLA leave, if any, they have already used during that benefit year. The Department of Labor (DOL) is explicit, that an “employee’s ability to take EFMLEA leave depends on their use of FMLA leave during the 12 month leave year…” In other words, if an employee has taken some, but not all of the 12 workweeks under FMLA, then they can take the remaining portion of the 12 weeks for EFMLEA.
- …So What if an Employee is Eligible Under BOTH EFMLEA and EPSLA?
- An employee who needs to take leave for care for a son or daughter whose place of care or child care provider is unavailable due to COVID-19, may be eligible to take leave under both EPSLA and EFMLEA. If that is the case, then the EPSLA and the EFMLEA benefits run concurrently. Thus, the first two (2) weeks of the leave would be paid under EPLSA, and the remaining weeks, if there are any, would be covered under EFMLEA.
- Intermittent Leave
- The regulations are clear that an Employee may take EPSLA or EFMLEA leave intermittently to care for a child, only if the employer and the employee agree. The leave may be taken in any increment of time that is agreed upon by the employer and the employee. Even more, if an employee is teleworking, the employer and the employee may agree that the employee may take leave (EPSLA or EFMLEA) intermittently, and in any agreed increment of time.
Notice for EPSLA and EFMLEA
The regulations require that an employee must give notice of the need for leave as soon as practicable. However, the regulations are clear that the notice cannot be required in advance. Employers may require such notice after the first workday for which an employee takes the leave. When taking leave due to school closure, the regulations require that the employee produce the following:
- Employee’s name
- Dates that the leave is requested
- Name of the school that has closed
- Oral or written statement that the employee is unable to work because of qualified leave.
- Name of the child being cared for; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the Employee takes EPSLA or EFMLEA.
Employers must be cognizant of their employees’ needs and carefully assess eligibility. The federal regulations are clear that any interference, discrimination or retaliation are prohibited.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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