On August 27, 2020, the U.S. Department of Labor (“DOL”) updated its Families First Coronavirus Response Act (“FFCRA”) Questions and Answers webpage (“FAQ”) to address eligibility for FFCRA benefits in light of the ongoing COVID-19 pandemic and the dynamic nature of school re-openings and programs. For more information and an overview of the FFCRA please visit our blog post. This article reviews the existing FAQs related to school closures and highlights the additional FAQs released by the DOL, addressing some circumstances under which a working parent may be entitled to paid leave under the FFCRA.

When can an Employee take FFCRA Leave for COVID-19 Related School Closures?

An employee may be eligible for up to twelve (12) weeks of FFCRA paid leave to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. (FAQ # 10)

An eligible employee may be entitled to paid FFCRA leave due to a COVID-19-related school closing to care for a child only if:

  • The child’s school is closed (FAQ #70, #93);
  • The employee must actually care for the child during that time and no other suitable person is available to care for the child (FAQ #69, and #98); and
  • The person is unable to telework (FAQ #19)

Is a School Providing Instruction Online Considered “Closed” Under the FFCRA?

A school or place of care is considered “closed” for purposes of FFCRA leave, if the physical location where the child received instruction or care is now closed, even if instruction is being provided online. (FAQ #70)

Can I ask an Employee if they Have Pursued Alternate Care Arrangement for a Child Returning to School?

An employer 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 the DOLs rule applying the FFCRA. For more information about the documentation requirements see our blog post.

Please note the DOL has cautioned that while an employer 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, it may increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that an employee has been teleworking despite having their 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. (FAQ #91)

If an Employee Takes FFCRA leave prior to Furlough How Much Leave do they have to Care for a Child Going Back to School?

Any time an employee was furloughed does not count against their FFCRA leave entitlement. An employee is entitled to up to 12 weeks of expanded family and medical leave. If the employee used a number of weeks of that leave before being furloughed, then the employee will be eligible for the remainder of additional weeks of leave for a qualifying reason. Because the reason an employee needs leave may have changed during the furlough, employers should treat a post-furlough request for FFCRA leave as a new leave request and have the employee provide the appropriate documentation related to the present qualifying reason for leave. (FAQ #96)

Can an Employee take FFCRA Leave if their Child’s School is Operating on a Hybrid-Attendance Basis?

Yes. Employees are eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for their child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to a child on days that they cannot attend in person. (FAQ #98)

If Employees have a Choice in their Child’s School Attendance Model can they Take FFCRA Leave?

No. An employee is not eligible to take paid leave under the FFCRA because their child’s school is not “closed” due to COVID–19 related reasons and is open for the child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. (FAQ #99)

However, if, because of COVID-19, a child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child. (FAQ #63).

Can Employees Take FFCRA Leave if their Child’s School Attendance Model Remains Dynamic?

Yes. An employee is eligible to take paid leave under the FFCRA while their child’s school remains closed. (FAQ #100) If the child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations (see FAQ #98 and #99).

Additional Resources

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.