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The Wage and Hour Division Answers Questions About the Families First Coronavirus Response Act As Schools Reopen

The Families First Coronavirus Response Act allows eligible employees to take up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave – 10 paid – for specified reasons related to the COVID-19 pandemic.

Both leave types are available to eligible employees who need time off “to care for [their] son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”

There has been much uncertainty about how the Act applies in the varied operating formats and schedules, including blended in-person and distance learning, that school systems plan to implement this fall. Yesterday, the Department of Labor’s Wage and Hour Division addressed that uncertainty through new guidance

The Key Takeaways

Some schools plan to operate on an alternate day, or other hybrid attendance basis; with students alternating between in-school and remote learning depending on the day. Under those circumstances, according to the Wage and Hour Division, the school is effectively closed to a child who may not attend in person. Thus, on those days, paid FFCRA leave is available to the child’s parent, so long as (1) he or she needs the leave to care for the child during that time; and (2) no other suitable person is available to provide the care.  (Remember that, under the FFCRA, an employee’s son or daughter includes his or her biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis.)

What about schools that allow parents to choose between having their children attend in person or participate in a remote learning program: Are employees eligible to take paid FFCRA leave if they elect the remote learning option, to minimize the risk of contracting COVID-19?

“No”, says the Wage and Hour Division. FFCRA leave is not available if an employee’s child is home not because his or her school is closed, but because the employee chooses against sending him or her there.  However, FFCRA leave may be available if, due to COVID-19, the child is under a quarantine order or a healthcare provider has advised the child to self-isolate or quarantine.

Consider another example: Some schools plan to begin the year under a remote learning program out of concern for COVID-19, but may later reopen for in-person attendance depending on how the pandemic unfolds. Employees in that situation, says the Wage and Hour Division, are eligible to take paid FFCRA leave while school is closed to in-person learning. Once it reopens, whether FFCRA leave is available will depend on the school’s operations.

The new guidance complements a growing library of resources and tools that the Wage and Hour Division has issued to help employers and employees navigate the changes in the workplace resulting from the COVID-19 pandemic. Those resources are available on the Division’s COVID-19 and the American Workplace web page. Arent Fox also has published several Alerts on the subject found here.

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