It seems like just yesterday that spring school terms were cancelled thanks to the coronavirus. Employees left the workplace en masse, sometimes without choice thanks to government shutdown orders, while others left suddenly to begin involuntary tours of duty as homeschool teachers with no training whatsoever, myself included. (My daughter’s strident request for a substitute teacher was unsuccessful, notwithstanding my enthusiastically seconding her motion.)
Just as we begin to heal from homeschool/homework/home-work burnout (present company excluded…I may never overcome that particular trauma), the new school year is just weeks away. Despite spirited debate about the wisdom of such plan, all signs point to most public schools reopening, at least to some degree. Some schools are postponing start dates, others are offering online-only alternatives while the pandemic continues to surge, still others are adopting hybrid curricula with alternating days or weeks of attendance, and others anticipate full-time classroom attendance, albeit with the risk of sudden closures in the event of pandemic outbreaks. Each model carries with it the risk –indeed, the near-certainty—that parents and caregivers of school-age children will soon again be conscripted to second tours as educators, posing a new round of challenges to employers of working parents.
By way of refresher, the Families First Coronavirus Response Act (FFCRA) became effective on April 2, 2020 and is currently scheduled to sunset on December 31, 2020. The FFCRA applies to public employers and private employers with fewer than 500 employees and provides for two types of leave: (1) Emergency Paid Sick Leave (EPSL), which is capped at 80 hours, and (2) Emergency FMLA (EFMLA) leave for childcare purposes. Under the EPSL provisions of the FFCRA, an employee may take up to 80 hours of job-protected leave for certain covered reasons, one of which is to care for a son or daughter whose school, daycare, or regular daycare provider has closed or become unavailable due to COVID-19-related reasons. An employee taking EPSL for such reason is entitled to be paid two-thirds (2/3) their regular rate of pay, up to a daily maximum of $200. EFMLA leave makes available up to 12 weeks of job-protected time off to employees who have worked at least 30 days for their employer and who require extended time-off to care for a son or daughter whose school, daycare, or daycare provider has closed or become available due to COVID-19. The first two weeks of EFMLA leave may be unpaid unless it runs concurrently with EPSL for the same reason, but the remaining 10 weeks of EFMLA leave are paid at two-thirds (2/3) the employee’s regular rate of pay, up to a daily maximum of $200. Because EFMLA leave is an extension of the existing (unpaid) Family and Medical Leave Act, an employee’s total FMLA allowance, including EFMLA leave, is 12 weeks.
If employees covered by the FFCRA did not already exhaust their 80-hour EPSL allotment in the spring, they are entitled to utilize the balance of their EPSL time in the event that schools or daycares close during the fall/winter term. Indeed, the Department of Labor (DOL) recently clarified this point in updated informal FFCRA guidance, explaining that any FFCRA leave allotment that was not already exhausted in the spring remains available for employees to use through the FFCRA’s expiration date. Likewise, if FFCRA-covered employees have not exhausted their 12 weeks of available FMLA/EFMLA leave, they may use the remainder during fall/winter school closings, but employers may request updated documentation of the new or renewed need for leave.
EPSL and EFMLA leave for childcare reasons may be used intermittently with employer permission, meaning that employees whose children attend hybrid programs may, with employer permission, take time intermittently to homeschool on the days school is not in session. Although intermittent FFCRA leave is always at employers’ discretion, flexibility in scheduling is encouraged in order to retain valuable workers with childcare challenges.
Although EPSL and EFMLA may run concurrently if taken for the same reason, it’s possible for employees to exhaust their leave entitlements at different times if the leaves are taken for different reasons, or for an employee to qualify for one type of leave and not the other (such as because the employee is a recent hire not yet eligible for EFMLA leave, or has already exhausted FMLA leave for the year). It is important to carefully consider the applicability and availability of each type of leave under the FFCRA. For example, even if an employee otherwise covered by the FFCRA has exhausted his or her FMLA allotment for the year, the employee is still entitled to the 80 hours of leave available under the EPSL provision of the FFCRA for qualifying reasons.
Many employers have been in the unenviable position of implementing furloughs due to economic conditions triggered by the pandemic. The DOL warns that an employee’s need for FFCRA leave is not a permissible reason for refusing to call back an employee from furloughs. An employer may not extend an employee’s furlough because the employee may need to take FFCRA leave to care for their child if called back to work because “[e]mployers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA.” Therefore, employers “may not use [an employee’s] request for leave (or [the employer’s] assumption that [the employee] would make such a request) as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.”
FFCRA benefits, if applicable, trump other types of leave, meaning that employees cannot be required to exhaust state paid sick leave or discretionary sick leave benefits before using FFCRA leave, but employers also must heed state paid sick leave statutes where applicable. More than a dozen states and many more cities and municipalities have adopted paid sick leave statutes; many more have added protections in the wake of COVID-19, as described here. Employers, particularly multi-jurisdictional employers, must be cognizant not only of their federal obligations, but of state- and municipal-specific leave obligations as well.
After utilizing all federal, state, and local leave available, employees still may exhaust discretionary sick, vacation, and other paid time off to accommodate school closures or flextime schedules, so employers are well-advised to plan in advance for sudden and overlapping absences and to consider providing refreshers on call-out/absence procedures to prevent sudden workforce shortages. Finally, if employees have exhausted leave options and have no alternative but to reduce their hours to accommodate school schedules, human resources and benefits professionals should be prepared with information about when employees become ineligible for benefits and provide COBRA (or state mini-COBRA) notices accordingly. Although it’s back-to-school time for our kids, we’re all getting an education during these truly unprecedented times.