It’s August, and most years that means back-to-school shopping has arrived. This year, with the 2019 novel coronavirus (COVID-19) pandemic still raging, back-to-school season feels a little different. And, the way in which students attend school in the coming weeks is going to look quite different too. While some students will return to the classroom on a full-time or intermittent basis, others will attend classes virtually.

As school districts finalize their back-to-school plans, employees may seek information about their leave entitlements and employers must be prepared to evaluate these requests. The Families First Coronavirus Response Act (FFCRA) requires employers to provide up to 80 hours of paid leave to employees for certain COVID-19-related reasons under the Emergency Paid Sick Leave Act (PSLA) and expands the Family and Medical Leave Act (FMLA) to provide employees up to 12 weeks of emergency job-protected leave to care for a child as a result of school or child care closings due to a public health emergency.

While some employees may have utilized their full leave amounts earlier this year, whether for leave covered by PSLA, Emergency Family and Medical Leave Act (EFMLA) or for other FMLA-qualifying reasons, other employees may still have leave available for potential school closings this fall.

KEY LEAVE CONSIDERATIONS FOR EMPLOYERS

The following are key leave considerations for employers as they prepare for the coming weeks:

Does virtual learning count as a school closure?

Many schools have converted to full-time or part-time virtual learning models. As a result, school is still in session, but in-person instruction is either not provided or limited, which has led some to question whether a school is closed for purposes the FFCRA leave. The Department of Labor (DOL) has issued guidance in a series of Frequently Asked Questions (FAQ) that confirm that when the physical location of a school or child care facility is closed, regardless of remote options, employees may be eligible for leave as a result of such closure. Notably, if a school is partially open and an employee’s child attends in-person instruction when available, the employee would not be eligible for leave on in-person instruction days.

Intermittent leave schedules

As a result of hybrid teaching models and other interceding events, employees may seek leave intermittently. The FFCRA regulations and the DOL’s FAQ make it clear that leave can be provided on an intermittent basis with employer approval. However, the practical implications of hybrid teaching schedules and a recent decision from the Southern District of New York, call into question whether employer approval can and should be required under these circumstances. As a result, employers should carefully evaluate requests for intermittent leave and consult with counsel before denying a request for intermittent leave related to an employee’s caregiving responsibilities.

Documentation is crucial

The regulations also clarify the type of documentation employers must request to substantiate the need for leave. Under the FFCRA, documentation for leave requests must contain:

1. The employee’s name
2. Dates for leave
3. The COVID-19 qualifying reason for leave
4. A statement representing that the employee is unable to work or telework due to the COVID-19 qualifying reason

Further, documentation for leave to care for a child must include:

1. The name(s) of the child(ren) being cared for
2. The name of the school, place of care or childcare provider that closed or became unavailable
3. A statement representing that no other suitable person is available to care for the child(ren) during the period of requested leave

To satisfy these requirements, employers should be flexible and creative as to the types of documentation they will accept to substantiate the need for leave. For example, there may be publicly available documentation about school closings and openings that employees can provide, or employees may be able to share letters from their districts that outline student schedules for the fall. Where third-party documents are not available, employers may request that employees submit a written statement that the employee is unable to work due to a school closure.

Importantly, employees who have been teleworking successfully for the past few months without the need for leave may request leave to care for their child(ren) due to school schedules this fall. According to the DOL’s FAQ, employees can be eligible for leave even if they previously did not need the leave.

Documentation should be requested and employers may ask the employee to note any changed circumstances as part of explaining why the employee is unable to work at this time. However, the DOL warns that employers must proceed with caution as denying leave based on changed circumstance information will violate the FFCRA. In other words, if an employee requests leave due to a school closure and indicates no other caregiver is available, leave should be provided. Nonetheless, if an employer discovers the employee is unlawfully taking leave based on misrepresentations (e.g., the employee is not taking care of a child), the employer may still discipline the employee.