With the new school year fast approaching, the question of whether employees are entitled to take leave under the Families First Coronavirus Response Act (FFCRA) for children who are distance learning this school year will depend on why they are distancing learning this year.

The following scenarios will be a factor:

  1. If a school is open for in-person learning and a child is distance learning by choice through an online option the school offers, the child’s parent is not entitled to FFCRA leave. In this case, the school is not closed; its physical location is open and the parent is choosing a remote learning option. Therefore, the employee does not have a qualifying reason for child care leave under the FFCRA. Note, however, that certain parents in this scenario still might qualify for FFCRA leave if the child is distance learning upon the advice of a health care provider to self-quarantine because of concerns related to COVID-19.
  2. If a school is requiring full-time online instruction or distance learning, the employee will qualify for child care leave under the FFCRA, provided that 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. According to the Department of Labor’s guidelines regarding FFCRA, if the physical location where the child receives 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.
  3. 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.”
  4. If a school provides a mix of in-person and distance learning (e.g., a student attends class in-person in the morning and online from home in the afternoon, or in-person two days per week and remotely three days per week), an employee could take intermittent FFCRA leave, but only with the agreement of the employer. Under the FFCRA, intermittent leave is not a right and is only available if the employer permits it. Note, however, that the Department of Labor encourages employers and employees to collaborate to achieve flexibility.”

Steps to Take Upon Request for Leave 
When an employee requests FFCRA leave relating to the need to care for a child, be sure to understand the underlying reason for the request.

If the employee is requesting Child Care Leave (i.e., leave due to the child’s school being closed or unavailable for reasons relating to COVID-19), ask follow-up questions as necessary.

  • Is the child’s school actually closed?
  • Does the employee have a choice to send the child to school in person, but instead is exercising a choice to have the child engage in remote learning?

You may require the employee to support the need for Child Care Leave under the FFCRA with appropriate information and documentation including a written statement supporting the need including name(s) and age(s) of the child(ren) and the name(s) of the school(s) that are closed and the applicable notice of closure.

Review Availability of FFCRA Leave
A total of twelve (12) weeks is available to an employee, for the purpose of caring for a child whose school or place of care is closed for reasons related to COVID-19.

Track use of FFCRA leave carefully, as an employee may have previously used either part or exhausted all of the twelve (12) week entitlement or a combination of sick and expanded FMLA for this purpose.

Remember that, as of now, the right to FFCRA leave expires at the end of 2020.

Be prepared to discuss any other leave options an employee may have, if leave under the FFCRA is not applicable or available.

Should you have any questions, please contact the Human Resources Department of OmegaComp HR directly at 916-266-4370.