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DOL: Remote Learning Does Not Qualify for FFCRA Leave

If a school offers both in-person and online learning options and a parent chooses the latter, the U.S. Department of Labor (DOL) has determined that the parent is not eligible for paid leave under the Families First Coronavirus Response Act (FFCRA).

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The DOL released guidance on the topic on Aug. 27 as schools across the country begin to restart. In its guidance, the DOL said “FFCRA leave is not available to take care of a child whose school is open for in-person attendance.”

The DOL said parents are allowed to use FFCRA leave on days when children are not permitted to attend school due to hybrid in-person and online arrangements. A child may be allowed to physically attend school only on their allotted in-person attendance days under such a model. Schools are “effectively ‘closed'" to workers’ children on those remote learning days, DOL said.

Parents may also take leave under the FFCRA if a school begins the year remotely with the intent to evaluate the circumstances and possibly reopen for in-person learning later on. If the school reopens, a parent's eligibility for leave “will depend on the particulars of the school's operations,” DOL said.

The FFCRA went into effect April 1 and consisted of two different laws: the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The DOL’s recent guidance applies to The Emergency Family and Medical Leave Expansion Act.

The Emergency Family and Medical Leave Expansion Act:

  • Adds a basis for 12-week FMLA leave related to childcare from school closures during the COVID-19 crisis.
  • Results in limited paid leave for 10 weeks.
  • Provides tax credits.
  • Expires on Dec. 31, 2020.
  • Applies to certain public agencies and private employers with fewer than 500 employees.
    • Exception: If you have fewer than 50 employees, you must comply but cannot be liable to an employee for failing to do so. Employers with fewer than 50 employees may seek a hardship exemption from the Department of Labor (DOL)
    • Counted employees include all U.S. full-time, temp workers, part-time, day-laborers, but not independent contractors (employees outside the U.S. are excluded from the count).
    • Any employee whose name appears on the employer’s payroll will be considered employed each working day of the calendar week and must be counted whether or not any compensation is received for the week.

To be eligible for leave under The Emergency Family and Medical Leave Expansion Act, employees must meet the following elements:

  • Has been employed for 30 days;
  • Can’t work or telework;
  • Has a childcare need; and
  • The child’s school or daycare is closed due to an emergency declared by federal, state, or local authority for COVID-19, or the child-care provider is unavailable.
  • Exception: If you are an employer of a “health-care provider” or “emergency responder,” then you may elect to exclude an employee.

A covered employer is required to provide an eligible employee:

  • An initial 10 days of unpaid leave during which the employee may elect to use PTO or sick pay provided under the Emergency Paid Sick Leave Act.
  • After the initial 10 days, 10 weeks of paid leave at 2/3 of employee’s regular rate of pay and the number of hours the employee is regularly scheduled to work, but this paid leave will be no more than $200 per day and $10,000 in the aggregate.

About the Author

Brett Christie Bio Image

Brett Christie is the managing editor of Workspan Daily.


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