Employer Considerations As Schools Reopen

As summer comes to a close, school districts across the country are grappling with how to re-open and get back to the business of teaching while keeping students, teachers, and staff safe during the COVID-19 pandemic. In Georgia, school districts are rolling out a mixed bag of reopening options which include full-time online remote instruction learning; in-person learning with an option for remote learning; and hybrid scenarios that offer a combination of remote learning and in-person instruction. If you do not have school-aged children, you might not be particularly concerned about what schools in your area decide to do, but that is a mistake because decisions by the schools and governments will have a huge impact on your business.

Undoubtedly, business owners will face challenges scheduling workers as parents adjust to the school reopening plans for their children. Perhaps more importantly, businesses will need to comply with the provisions of the Families First Coronavirus Response Act (FFCRA) by providing paid leave to eligible workers. Under the FFCRA, certain employers with up to 500 employees must provide eligible employees with emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) for specified reasons related to COVID-19. There are various qualifying reasons for leave under FFCRA, but one reason relates to the reopening of schools: If an eligible employee has a child in a school that provides online instruction only (which essentially means the school is closed) and the employee needs to care for his/her child at home, the employee may be entitled to receive up to two weeks of paid leave under the EPSL and 12 weeks of EFML leave.

The first two weeks (80 hours, or a part-time employee’s normal hours for two-week) will be paid leave based on the higher of their regular rate of pay or applicable Federal minimum wage. Up to 12 weeks of EPSL and EFML will be paid at 2/3 of the employee’s regular rate of pay. The FFCRA also allows leave to be taken in consecutive weeks or intermittently. In other words, employees may take leave in small chunks of time if needed. Currently, the EPSL and EMFLA are set to expire at the end of 2020.

Here are some typical questions that might come to mind:

Q. My employee’s child has the option to go to school or move to online instruction only. Is the school considered “closed”?
A. The FFCRA requires the child’s school or place of care to be “closed” for the employee to qualify for leave. If the child’s school provides online instruction only, the school will be considered closed. If, however, the child is provided a choice to return to school or virtual school, the school will probably not be considered closed. Thus, the employee would not be eligible for FFCRA benefits.

Q. What if the school is open, but my employee chooses the remote learning option because the employee’s child has a medical condition that makes the child vulnerable to COVID-19 and a healthcare provide has recommended remote leaning?
A. Because the physical location of the school is not “closed” an argument can be made that EFML is not available; however, the employee may qualify for leave to care for a child who has been advised to stay at home or “quarantine” because the child is susceptible to COVID-19. Further guidance from the U.S. Department of Labor (DOL) on this issue is needed. Even if FFCRA does not apply, the Family Medical Leave Act (FMLA) may apply for eligible employers.

Q. Is the employee eligible for leave if the school operates under a hybrid system that requires in-person learning specific days of the week (e.g., M-W-F) and is supplemented with online remote learning?
A. If the school is partially closed due to COVID-19, most likely the employer should provide FFCRA leave intermittently on the days the employee is not able to work or telework because the school is closed. Given the number of school districts that intend on using the hybrid model, the DOL will need to provide employers with additional guidance on this issue.

Q. Will EPSL count against any other type of paid sick leave or paid time off (PTO) that employee’s receive as part of the company’s benefit plan?
A. No. EPSL is a new leave entitlement that employers must provide in addition to any paid sick leave or PTO offered.

Q. Can employees take FFCRA leave if they were eligible for and used some or all of their FMLA leave?
A. EPSL is available to eligible employees regardless of how much leave has been taken under FMLA. The amount of EFML that is available to an employee, however, will depend on how much FMLA leave the employee has already used during the employer’s 12 month measurement period. EFML leave taken will count against the employee’s existing allotment of pre-existing FMLA leave.

Q. How should employers handle requests for FFCRA leave?
A. The FFCRA requires employers and employees to have an open dialogue about the request for leave. Employers should ask relevant questions to make sure they understand the reason(s) for the request. Questions can include, asking about the name(s) and age(s) of the child(ren) to be cared for, the name of the school and if it is truly closed, a copy of the applicable notice of closure or unavailability of the school, such as a notice published on the school website or email from the child’s school. The employer should focus on developing potential positive outcomes to allow the employer to attend to the needs of the kids and workplace. Creative solutions may include the employer offering employees a part-time position, leave of absence, alternative or modified job duties or hours.

In addition, employers should track leave provided under FFCRA carefully to ensure that they are in compliance with FFCRA, and aware when employees have exhausted their FFCRA leave entitlement.

Q. Are there any exceptions or exclusions from FFCRA leave for school or place of care closure, or childcare unavailability related to COVID-19?
A. Yes. The FFCRA only applies to private sector employers with fewer than 500 employees, and certain public sector employers. In addition, the FFCRA permits employers to exclude healthcare providers and first responders from the EPSL and EFML requirements. Moreover, small businesses with fewer than 50 employees may appeal to the DOL for an exemption for providing the EPSL and EFML for school or place of care closures, or unavailability of child care, if providing such paid leave would jeopardize the viability of the small business as a going concern.

Q. What are the penalties for non-compliance?
A. The U.S. Department of Labor’s Wage and Hour Division (WHD) has the authority to investigate and enforce FFCRA compliance. Employers who violate the provisions of FFCRA by discharging, disciplining or otherwise discriminating against an employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA may face liability for back pay, liquidated damages, attorney’s fees, and reinstatement.

The COVID-19 pandemic has created a challenging time for employers and employees. This pandemic has created business interruptions, financial pressures and safety concerns for the health and well-being of workers and their families. Employers and employees should work together, be flexible and communicate clearly to creatively come up with productive “win-win” solutions for all involved.

This Article provides information about a specific employment situation. It is not intended to be, and should not be construed as providing legal advice for any particular situation. Should you have any questions, please contact one of our attorneys at 404.844.4130.