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School Schedules and Leaves

September 22, 2020

The U.S. Department of Labor (“DOL”) has been updating its Questions and Answers (“Q&A”) clarifying the Families First Coronavirus Response Act (“FFCRA”) and school closures.

The FFCRA provides for paid sick leave for eligible employees who are unable to work because they need to care for a child whose school is closed for reasons related to COVID-19. Employees are also eligible for leave if their childcare provider is closed or unavailable due to COVID-19 related reasons and they are unable to work because they need to care for their child. For clarification on the FFCRA and additional eligibility, see here and here.

The school year has begun. Some schools will be teaching in person; some schools will partake in fully remote learning; some schools will implement a hybrid style of in-person and remote learning. Now that school is back in session, what does this mean for students, parents, employees, and employers?

The DOL has issued a Q&A clarifying school closures for purposes of the FFCRA:

School Closure

  • A school is closed when it conducts distance learning but is closed to in-person attendance.
  • When a school adopts a hybrid, or alternating open for in-person learning, schedule, the school is considered closed on the days that the student cannot attend in person.
  • If a parent has the option of choosing in-person or distance learning and chooses to enroll their child in remote learning, the child’s school is not closed.
  • If, because of COVID-19, the child “is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, [the employee] may be eligible to take paid leave to care for [the child].”

Teleworking Employees/Parents

Employees permitted and able to telework are not “unable to work.” If an eligible employee is unable to perform teleworking tasks or teleworking hours because [they] need to care for a child whose school or place of care is closed because of COVID-19-related reasons, then the employee is entitled leave. Leave is not available for an employee who is able to telework while caring for a child.

Employee/Parent’s Eligibility

If a parent is home with their child because their school is closed and unable to work, the parent may be eligible for both emergency paid sick leave and expanded family and medical leave but only for a total of 12 weeks paid leave. For additional information see here.

Conclusion

Parents may take leave if necessary to care for a child whose school is closed to in-person attendance or on the days that the hybrid in-person/distance learning schedule is remote under the FFCRA. If a school has the option of in-person learning and the parent chooses distance learning, the parent may not take leave under the FFCRA.

Parents who are willing and able to telework are not eligible under the FFCRA unless they cannot telework and care for their child. Qualifying parents may be eligible for a total of 12 weeks leave.

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