One of the biggest controversies this summer was the question fiercely debated over whether to reopen schools for fall sessions. President Trump and the Centers for Disease Control and Prevention (CDC) recommended letting kids back into the schools, while many local officials and the teachers unions preferred to keep them closed.
The end result is that most schools are closed, while others are allowing students to return under alternate schedules where the student body rotates on different days of the week between studying at home and attending classes.
Caught in the middle of all this are the parents. As difficult as it was for them to accommodate the home study needs of their children during the final months of the last school year, they now face an almost insurmountable burden, especially with many of them expected to return to work as the economy revives. Even employers of those who continue to work remotely may struggle with accommodating the needs of parents.
This raises the thorny issue for employers of how to deal with employees who will need further time away from worksites to supervise and educate their offspring. That is why employers should not waste time developing a plan to deal with this issue, according to attorneys Michael Blum, Karl Butterer and Clifford Hammond of the law firm of Foster Swift Collins & Smith.
They offer a guide (but not a machete) to help employers navigate a winding path through the legal thicket of laws and acronyms that popped up to regulate employer behavior during the COVID-19 pandemic.
One of the laws enacted to address the crisis is the Families First Coronavirus Relief Act (FFCRA). It provides employees with up to 12 weeks of leave at two-thirds of an employee's regular rate to care for their children if their school or place of care is closed (or if their child care provider is unavailable) for COVID-19 related reasons.
Employers must keep in mind that the first 80 hours of leave is protected by the Emergency Sick Leave Act (ESLA), while the remaining 10 weeks is protected by the emergency family medical leave provisions of the FFCRA, the attorneys point out.
“While this sounds very simple, it can get a bit more complicated than employers may think,” they say. “This is because the FFCRA has two separate leaves, one that covers six different qualifying events, including caring for a child whose school or place of care is closed due to COVID-19 that involves the first 80 hours.”
This kind of leave is part of FFCRA and is known as the ESLA. An employee only has 80 hours of Emergency Sick Leave to use through Dec. 31. As a result, an employee who needs time off because their child’s school is closed, but has already exhausted all or some of their time for other reasons, such as for dealing with their own sickness or symptoms, will have a reduced bank of protected time left.
The second type of leave is found in the Emergency Family and Medical Leave Expansion Act (EFMLEA), which is actually part of the FFCRA. It amends the Family Medical Leave Act (FMLA) to provide employees an extra reason to take up to 12 weeks of leave through Dec. 31. Complicating this is the fact that that if an employee has previously used some FFCRA time due to school closure or unavailability of childcare, then their bank of time is reduced for the rest of the year. Similarly, if an employee has used FMLA for any other purpose, then their entitlement to 12 weeks for school and childcare unavailability is also reduced.
Employers are required to allow their employees to use FFCRA time off first before exhausting their own personal time. Although the FFCRA only pays employees two-thirds of their regular pay to deal with childcare and school closures, employers are permitted—but not required to—allow employees the opportunity to utilize their banked time off to compensate them for the remaining one-third of pay that FFCRA leave doesn’t cover.
Figuring When and Where
When an employee asks for a leave for the closure of school or their child’s care provider was unavailable, the employer must document the name of the child being cared for, the name of the school, place of care or child care provider that has closed or has become unavailable Also required is a statement from the employee that no other suitable person is available to care for the child.
This is important both to determine if leave is qualified under the FFCRA and for reimbursement from the Internal Revenue Service for the qualified paid time off, the attorneys stress.
One important element of the use of FFCRA leave for school closures and child care is that it can be used intermittently and the Department of Labor (DOL) has indicated that this decision ultimately is up to the employer. While the DOL encourages providing intermittent ESLA and EFMLA leave on an intermittent basis, it recommends that an employer should work with the employee to determine what days will be used in advance. Keep in mind that the employer can allow employees to take the leave on a day-by-day basis.
Saying no to an intermittent leave request may result in the employee saying they need 12 weeks in a row off, for example. “Working with employees could be beneficial to everyone,” the attorneys point out. “In addition, if an employer allows an employee to simply work from home, rather than making them take a leave, the employer will not have to provide the employee paid leave and will get work out of the employee.”
The Labor Department also encourages employers to look at a combination of remote work, intermittent leave and even permitting employees the opportunity to work different hours during school.
To make matters more complicated, state laws may come into play as well and they should be taken into full account when developing your leave policy for parents who find themselves in this bind.
Foster Swift Collins & Smith attorneys recommend that employers take the following steps:
● Review your leave policies and account for the amount of time each employee has already taken or is entitled to take.
● Then monitor the time properly to ensure the employer provides the needed time data to support your policy.
● Develop a checklist of questions in regard to leave so that you can properly document a leave request and the reasons for its approval or denial.
● Make sure to keep a record of all requests and decisions to approve or disapprove them, along with an orderly system to track these requests.
Employers also want to make sure they are consistent in the application of their review processes so their decisions do not result in unintended inconsistencies leading to potential discriminatory outcomes, Blum, Butterer and Hammond suggest. “That is why it is important to evaluate all requests and only provide FFCRA leave for requests that qualify and utilize the employer's non-FFCRA leave and time off procedures in a fair and evenhanded manner.”
They add, “It is important to know that employees are not simply entitled to unlimited leave for any reason. All employers should evaluate the need for leave, remote work and additional flexible work options available to avoid confusion and complaints.”