The Department of Labor has updated its list of FAQs about the Families First Coronavirus Response Act (“FFCRA”) to address when employees would be eligible for Emergency FMLA leave when the employee’s child’s school is operating on a remote or hybrid learning schedule. The FFCRA requires that employers with fewer than 500 employees allow any employee (full or part-time) who has been on the payroll for 30 days to take Emergency FML for up to the full 12-week allotment where the employee is unable to work (including telework) and the employee must care for a child whose school has been closed, or where the childcare provider is unavailable, due to a public health emergency relating to COVID-19. Employers may exclude individuals who are healthcare providers or emergency responders from this type of leave, and employers with fewer than 50 employees are exempt when providing this leave would jeopardize the viability of the business.
 
The new FAQs, numbers 98 to 100, address various possible school attendance patterns. Number 98 addresses hybrid school models, in which a child attends school in person some days and must participate in remote learning on other days. In this situation, where a student is permitted to attend school only on their allotted in-person attendance days, an employee is eligible for paid leave on the days when the 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 the child during that time and no other suitable person is able to do so.
 
Number 99 addresses parental choice schooling options, where a child can participate in-person or remotely, based on the parent’s preference. Because the child’s school is not “closed,” paid leave under the FFCRA is not available for an employee who chooses to have their child participate in remote learning. If the child is under a quarantine order because of COVID-19 or has been advised by a health care provider to self-isolate, however, the employee may be eligible to take paid leave to care for the child.
 
Number 100 addresses schools that are currently operating under a remote learning program but may reopen for in-person attendance later in the school year. Under these circumstances, an employee is eligible to take paid leave under the FFCRA while the child’s school remains closed. If the child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.
 
In short, on days that an employee’s child may not attend school in person and must participate remotely, the employee is eligible for paid leave under the FFCRA for that day as long as the employee needs the leave to actually care for the child during that time and no other suitable person is able to do so. On days that a child may attend school in person, the employee is not eligible for paid leave under the FFCRA. As schools’ plans for in-person learning evolve in response to COVID-19, employers will need to continue to be aware of their leave obligations under the FFCRA.

Click here to access Spilman's FAQs about the FFCRA. You can also click here for those published by the Department of Labor.