September 21, 2020
After traversing a very windy road, the federal COVID-19 leave law has been determined to allow employees paid leave if their children are forced to learn remotely. Here’s the back story.
As summer came to an end and children returned to primary school, employees were faced with hard decisions regarding childcare if their children were learning remotely on a daily basis or through a hybrid model. While the hybrid learning model means different things in different school districts, the one thing they all have in common is attending school part time in the classroom and part time at home. Remote learning raises serious questions and concerns for both employers and employees. The most critical of which is whether employees are entitled to federal paid leave under the Families First Coronavirus Response Act (the “FFCRA”)? If so, is it available for children studying from home full time and is it available on an intermittent basis for children who are required to work from home under the hybrid model?
Initial guidance from the federal Department of Labor (the “DOL”) gave us an answer. This guidance provided that employers are to consider schools closed on the days students are required to be at home; thus federal leave for childcare was available.
The next logical question and one which several of our clients have recently asked is whether or not employees can use intermittent leave under the FFCRA on the days children are required to learn from home? Although the FFCRA does not address this question, the DOL did in its implementing regulations, which allow for the use of intermittent leave in such cases but only with employer consent. As one can imagine, this DOL regulation did not sit well with many employees and state governments. One of the leading states in this fight was New York, whose Attorney General sued the Department of Labor in the case, New York v. United States Department of Labor.
As part of the decision, the judge vacated the regulation requiring employer consent for an employee’s use of intermittent leave. In recognition of this adverse decision, the DOL issued new guidance allowing the use of intermittent leave without employer approval (click here to read DOL regulation).
Thus, employees have the right to use intermittent leave on the days their children are learning remotely. However, if parents voluntarily choose to keep their child home for a completely remote learning model, an employer is not to consider the school closed for FFCRA purposes. Therefore, these parents/employees are not able to avail themselves of FFCRA leave at all.
It is important for employers to keep in mind how the FFCRA and the childcare provisions of its components (the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act) interact with the employer’s own current leave policies and state and local leave laws. Brody and Associates is well versed in the employment laws surrounding COVID-19 and is available to assist you should you have any questions or concerns on how this or any other recently enacted COVID-19 law applies to your business.
The subject matter of COVID-19 posts are often very technical. It is also an evolving area of law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.
