School’s Out: Can Employees Still Take FFCRA Leave for School Closure Reasons This Summer?
As employers covered by the Families First Coronavirus Response Act (“FFCRA”) know, the Act entitles employees of private employers with less than 500 employees who cannot work (or telework) for Covid-related reasons to take paid sick leave. The Act also provides expanded and paid family leave for employees to use if they have a child whose school has closed due to Covid-19. The closures lasted longer than many of us thought they would and now school is out for the year for many and will be out soon for others. Employers now may be wondering whether they still have to provide paid family leave under the FFCRA to employees to stay home and care for their children while school is out for the summer. This may seem like an obvious “no,” but the answer is not that simple. The Department of Labor (“DOL”) recently updated its FFCRA guidance to address this very issue in response to a number of employer inquiries. Here’s the DOL’s FAQ guidance on this issue:
Q. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?
A. No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.
This means that even though paid sick leave and paid family leave under the FFCRA generally are not available to an employee whose child’s school is closed for its normally scheduled summer vacation, if an employee’s other summer child care plans are unavailable because of Covid-19 related closures—which is certainly possible because many camps and activities have been cancelled—the employee still may be eligible for paid FFCRA leave if the employee is unable to work or telework due to the need to care for a child whose summer activities have been cancelled. If you’re wondering how much proof you can require from an employee to substantiate their need for paid FFCRA leave for this reason, there is not a ton that you can require. According to the DOL, the employee must provide, either orally or in writing, (1) his or her name; (2) the dates for which leave is requested; (3) the covered reason for the leave (i.e. Covid-related school/child care closure); (4) a statement that the employee is unable to work for this reason; (5) the name of the child; (6) the name of the school, place of care, or child care provider that has closed or become unavailable; and (7) a statement that no other suitable person is available to care for the child.
But wait . . . there’s more! What if you have an employee who has been successfully teleworking for the past two months (while their child’s school was closed) and now suddenly claims the need to take paid FFCRA sick leave and/or expanded family leave in order to care for a child whose school/summer child care is closed due to Covid-19? Is this legitimate? According to the DOL, it may be. Here’s the DOL’s guidance on this issue:
Q. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?
A. You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation outlined in section 826.100 of the Department’s rule applying the FFCRA [this is the documentation I listed above]. While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason. This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.
The DOL’s entire FAQ on the FFCRA is available here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.