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Federal Law Alert

DOL Releases New Back-to-School FFCRA Guidance

Ever since it became clear that not all schools would be fully reopening for the new school year, employers and employees alike have been wondering how the federal Families First Coronavirus Response Act (FFCRA) would apply in the variety of new schooling scenarios. Yesterday, the Department of Labor released several new Questions and Answers that address those issues, quoted below:

Question 98: My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your 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 your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

Question 99: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID-19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

Question 100: My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.

Providing Non-FFCRA Leave and Flexibility

Although employees aren’t entitled to FFCRA leave if their child’s school is technically open and they choose remote learning, we encourage employers to work with employees who have chosen to keep kids home (as in Question 99), working out a flexible or reduced schedule as needed. If an employee has chosen to have their children attend school online only, it is likely because they feel the school is not safe or the risk of the child bringing the virus home and infecting a more vulnerable person is too high. If required to choose between working and keeping their family safe, many parents will choose safety, thus leaving their employer with a position to fill. Given the cost of replacing an employee (generally from 20 to 200 percent of their yearly salary), working out a flexible or reduced schedule with employees in this situation is likely the best choice for the company’s bottom line as well as its reputation.

The full 100-question Department of Labor FAQ is available here.

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COVID-19 FAQ

Below are the most frequently asked questions we’ve received related to COVID-19. We will be updating this FAQ in the coming days, weeks, and months, so check back frequently.

Here are their free covid HR resources on their website. If you need access to ThinkHR's paid features please contact Megan Thornton for a consultation or access.

Families First Coronavirus Response Act (FFCRA)

• What is the new federal COVID-19 law, and what does it do?

• Do we need to provide the required sick leave under the FFCRA in addition to the sick leave we already offer, or can we lump it all together?

• What are our EPSL and EFMLA obligations to different employee situations, such as remote employees?

• Is the FFCRA retroactive or applicable before its effective date?

• Does the FFCRA apply to me if I have more than 500 employees? How do I count them?

• How do EFMLA and EPSL relate to each other, especially in regard to caring for children?

• How does the FFCRA define emergency workers or healthcare providers?

• How does the FFCRA apply to state law obligations, like unemployment or state-mandated paid sick leave?

• Do we still have to provide EPSL or EFMLA if we lay off or furlough employees?

• If I am a nonprofit or a public employer, do FFCRA tax credits and reimbursement apply to me?

Employee Safety

• Can we send employees home if they are symptomatic?

• What if my employee discloses that their family member or roommate has COVID-19?

• Given COVID-19, if an employee is out of the office due to sickness, can we ask them about their symptoms?

• We are an essential business where there’s a shelter-in place-rule and an employee is refusing to work as they say it’s not safe. Can we discipline them?

• What should we do if an employee says their symptoms are not related to COVID-19?

• Is it safe for our employees to keep working? How do we decide whether to keep employees working or not?

• Can we tell employees who travel to stay home and quarantine, even if they don’t have symptoms?

• Can I send an employee home if they are sick or pregnant, regardless of whether it’s COVID-19-related, just to be safe?​

• What should we do if a potentially exposed employee came into the office? Do we inform affected employees and/or send everyone home?​

• How do we handle taking employee’s temperatures?

Work from Home

• Can we require or allow certain groups of employees, but not others, to work from home?

• How do I make a telecommuting policy?

Pay

• If we choose to close temporarily, do we need to pay employees?

• Can we reduce pay because of economic slowdown due to COVID-19?

• Do we have to pay an employee we sent home due to COVID-19?

• How do we make sure we pay employees appropriately when they work from home?

Leaves of Absence

• How are we supposed to pay for the sick leave and FMLA leave mandated by the Families First Coronavirus Response Act?

• Can we require employees to get medical notes for sick or medical leaves related to COVID-19?

Termination

• What’s the difference between a furlough and a layoff?

• Our business is suffering due to COVID-19. We can’t afford to pay people and might have to close. What do we do?

Unemployment

• If we close temporarily, will employees be able to file for unemployment insurance?

• I’m concerned about the cost of unemployment as well as how to advise employees about it. Any help?