As students return to school this fall, parents find themselves learning new vocabulary terms, such as “remote learning,” “distance learning,” “synchronous or asynchronous instruction,” and “learning pods.”  Parents are also learning how to juggle their own work, either from home or onsite, and their children’s instruction.  Employers have probably been receiving requests from employees to use leave under the Families First Coronavirus Response Act (FFCRA) to care for their children whose school or place of care is closed (or whose child care provider is unavailable) due to COVID-19-related reasons.  This article will specifically address some of the issues to address when administering leave for child care purposes.

To see LCW’s full coverage on COVID-19, please visit this website.

When does an employee qualify for leave for child care purposes?

The key fact in determining whether an employee can use leave under the FFCRA is whether the child’s school or child care provider is “unavailable” for COVID-19 related reasons.  On August 27, 2020, the Department of Labor issued three new questions and answers on their website addressing this issue.  The DOL Questions and Answers #98 to #100 are found here.

The new questions and answers have provided the following guidelines:

• If a student is only permitted to attend school on specific days, the employee qualifies for leave for those days the student is required to stay home and the employee has to care for the child.
• If in-person instruction is available, but the parent chooses to participate in remote learning (e.g., for fear of transmission of COVID), the employee does not qualify for leave because the school is not “closed” to that student.
• If the school decides that all students will begin with remote learning, but has plans to open the school later, the employee qualifies for leave only during the time when the school is offering remote learning.

As you can see, employers will need to conduct an individualized assessment of whether an employee can take leave for child care purposes.  This will be different for each employee depending on the county, school district, school or child care provider, and student.

How much leave is available to an employee for child care purposes?

The employee is entitled to two weeks of leave under the Emergency Paid Sick Leave Act (“EPSLA”) and twelve weeks of leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for child care purposes.  The employer can choose to have these leaves run concurrently, which means the two weeks of EPSLA can run at the same time as the first two weeks of EFMLEA.  If, however, an employee used two weeks EPSSLA for a reason other than child care, e.g., pursuant to a quarantine order, then they will still have twelve weeks of leave available to them under EFMLEA.

The amount of leave is subject to the following limitations:

• For employees who may have used some or all of this leave earlier this year (e.g., the end of the last school year), the leave available would be reduced by the amount of leave used. For example, if an employee exhausted their leave in the spring, they would have no further leave available for the fall.
• EFMLEA is also limited by any weeks that may have been used under traditional Family and Medical Leave Act (“FMLA”). For example, if an employee used four weeks of FMLA for their own serious health condition earlier this year, they would only have eight weeks of EFMLEA available to them.
• Leave under the FFCRA expires on December 31, 2020. So, even if an employee starts leave before the end of the calendar year, leave under the FFCRA is only available to employees through December 31, 2020.

Is the leave under the FFCRA paid or unpaid?

Leave under EPSLA for child care purposes is paid at 2/3 the employee’s average regular rate, up to $200 per day or $2,000 in the aggregate.

The first two weeks of EFMLEA is unpaid.  The next ten weeks of EFMLEA is paid at 2/3 the employee’s average regular rate, up to $200 per day or $10,000 in the aggregate.

Please note that the “average regular rate” under the FFCRA must be calculated very carefully.  You can view LCW’s webinar on the topic here.

The employee may elect to or be required to use their paid leaves, such as vacation or personal leave, according to the employer’s existing policies.

Can the employee use leave under the FFCRA intermittently?

The DOL published a regulation, 29 C.F.R. § 826.50, which states, in part:

Subject to the conditions and applicable limits, an Employee may take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree.

The DOL Question and Answer #22 reinforces that the employer must agree to provide intermittent leave for child care purposes.  However, in the same response, the DOL states: “The Department encourages employers and employees to collaborate to achieve flexibility.  Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.”

Further, we also note that a court in the Southern District of New York has vacated the “blanket requirement” of the employer and employee agreeing to intermittent leave.  The court held that while the employer could deny the leave to prevent the transmission and spread of COVID, the DOL did not justify the “blanket requirement of employer consent” when issuing the regulation.  Please note that this is a District Court case from New York, and is not binding on California employers.

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Employers are encouraged to contact legal counsel when faced with these types of leave requests from employees.  As mentioned above, each request will require an individualized assessment on whether an employee qualifies for the leave and how much leave is available to them.

For further details on the administration of these laws, please review our previous articles here and here.