We previously blogged on the myriad challenges faced by workers whose children are returning to school this fall: some online, some in-person, and some a combination of both. As we noted in our prior post, the Families First Coronavirus Response Act (FFCRA), which is effective through December 31, 2020, provides up to eighty (80) hours of emergency paid sick leave (EPSL) to care for a minor son or daughter whose school, daycare, or regular daycare provider has closed or become unavailable due to COVID-19 related reasons. The FFCRA also provides up to twelve (12) weeks of job-protected expanded emergency family medical leave (EFML) to employees who have worked at least thirty (30) days and who require extended time-off due to school, daycare, or daycare provider closures or unavailability caused by COVID-19. For EPSL taken for childcare reasons and for EFML, employers must pay their employees at least two-thirds (2/3) their regular rate of pay, up to $200/day; however, the first two weeks of EFML may be unpaid. As with other aspects of the FFCRA, the Act only applies to employees of public employers and private employers with fewer than 500 employees.

But the FFCRA and its implementing guidelines did not fully address how the FFCRA could be utilized by parents facing virtual or hybrid educational options for their school-age children this fall. Trying to fill that gap, on August 27, 2020, the U.S. Department of Labor (DOL) updated its informal FFCRA guidance (which it provides in the form of FAQs on its website) to address virtual learning arrangements.

• First, if schools are opening on a hybrid-attendance basis (open for in-person education some days, open for virtual learning on others), eligible employees may take paid FFCRA leave on the days their children are required to participate in remote learning, provided that the employee has need for “leave to actually care for [the] child during that time and only if no other suitable person is available to do so.”

• Second, if schools provide parents the choice to allow their child to attend in-person or participate in a remote learning program, and the employee-parent elects to have their child participate in remote learning, the employee is “not eligible to take paid leave under the FFCRA because [the] child’s school is not ‘closed’ due to COVID-19 related reasons.” The DOL’s position is that the “school is open for in-person attendance,” and the child is only participating in remote learning because of parent choice, which is not an FFCRA-covered reason. However, if a child is under a quarantine order or has been advised by a health care provider to stay home and self-isolate or self-quarantine, then the employee may be eligible to utilize EPSL to care for the child.

• Finally, if schools implement a continuous remote learning program at the beginning of the school year but will subsequently reevaluate the safety of reopening for in-person attendance later in the year, an eligible employee may take continuous FFCRA paid leave during the initial remote learning phase, provided the other requirements for eligibility are met.

The DOL’s initial FFCRA regulations suggested that intermittent leave under the FFCRA was at the discretion of employers, but a recent federal district court opinion, which concluded that intermittent leave must be available to employees for child care reasons (among certain others), and this updated DOL guidance signal a shift toward requiring intermittent FFCRA leave where feasible. Employers are therefore urged to be flexible in working with eligible employees who face the daunting task of working and facilitating remote learning for their children.