By: Amy Epstein Gluck

My county’s school board just made an announcement: my 15-year-old will not be attending school with his friends, in person, this fall. There is no half and half option. It’s all remote, period. He will not be playing hockey either, a fact that has him unhappy.

What does this have to do with employment law?

Well, a lot actually.

Why? Because of the Families First Coronavirus Response Act (FFCRA).

Remember, because I told you most recently here, that FFCRA kicks in if an employee is caring for a child if the school or place of care of the employee’s child is closed, or the kid’s childcare provider is unavailable, because of COVID-19. In such a case, an employee is eligible for 80 hours of paid sick leave under the FFCRA and ten weeks of expanded family medical leave.

So this got me thinking: are employees with kids eligible for FFCRA leave if they have a choice of remote learning or in person learning? That’s not an option in my district, but, yes, this is the way my employment law nerd mind works. I even discussed it over dinner last night with my family. (Cue eye-roll by all three kids.)

It turns out that my good friend, fellow employment law blogger Jon Hyman was pondering these same questions! He even answered them, and his responses are spot-on. Jon wrote:

Does the FFCRA cover distance learning?

The question of whether employees are entitled to take leave under the FFCRA for children who are distance learning this school year will depend on why they are distancing learning this year. (emphasis is mine)

1/ School is open for in-person learning and parents choose a distance learning option — No FFCRA leave

2/ School is 100 percent remote — FFCRA leave

3/ Children attend a mix of in-person and distance learning per a schedule established by the school — intermittent FFCRA leave (if the employer agrees)

Breaking It Down

Under this first reason, you can see the rationale: if school is OPEN, the employee does not have a qualifying reason for child care leave under the FFCRA. But, as Jon cleverly notes, parents in this scenario still might qualify for FFCRA leave if the child is distance- learning because a doctor or other health care professional advises that the child self-quarantine because of concerns specific to COVID-19—maybe if the child is diabetic or has an auto-immune disease.

(credit: Pixabay)

If school in your county is ALL remote, like mine, yes, your employees would probably be able to take leave under the FFCRA. But it’s likely that mine would not.

Huh?

My kid is 15, and I work from home. He’s taking extra classes that his father (who is in the education field) made him “attend” at the start of the summer. He does not need either parent’s supervision.

However, if school will be 100% remote in your county, employers must provide FFCRA leave if, as Jon advises, “the employee certifies to the employer that no other suitable person will be caring for the child(ren) during the period for which the employee takes FFCRA leave.”

Indeed, the DOL’s FFCRA FAQ’s  says as much: “If the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.”

Thanks, Jon, for concisely explaining these various options and outcomes. It’s good that other employment lawyers are likely sitting around the dinner table torturing their families with these scenarios :).

Employer Takeaway

Eligible employers, i.e., ones with 500 or less employees, have just a few weeks to consider these questions before school starts. This is one back-to-school question employers want to consider and plan for before that happens.

Make some decisions based on where your employees work, and apply it consistently among your workforce.