School Closures, Virtual Learning, and the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) provides for paid sick leave and family and medical leave due to COVID-19. The FFCRA has two main components: It requires employers to provide up to 80 hours of paid leave to employees for certain COVID-19-related reasons under the Emergency Paid Sick Leave Act and up to 12 weeks of emergency job-protected leave to care for a child as a result of school or child care closings due to a public health emergency under the Emergency Family and Medical Leave Expansion Act.

Many schools have converted to full-time or part-time virtual learning models. Thus, although school is in session, there may be limited or no in-person instruction. The Department of Labor (DOL), which promulgates the regulations for the FFCRA, has issued guidance through its Frequently Asked Questions stating that when the physical location of a school or child care facility is closed, regardless of remote options, employees may be eligible for leave as a result of such closure. Therefore, when virtual learning is in effect but the physical location is closed, the employee may be eligible for leave under the Emergency Family and Medical Leave Expansion Act. Notably, if a school is partially open and an employee's child attends in-person instruction when available, the employee would not be eligible for leave on the in-person instruction days.

Currently, the FFCRA's regulations permit employees to take leave intermittently only if the employer and employee agree, and even then, only for a qualifying reason and where there is a minimal risk that the employee will spread COVID-19 to other employees.  A recent decision from the United States District Court for the Southern District of New York ruled, however, that employers must grant intermittent leave where there is not a risk of spreading COVID-19. Based on this decision, employer consent may no longer be required in New York for an employee to take FFCRA leave intermittently to care for a child whose school or place of care is closed due to COVID-19.  It is not yet known if the FFCRA's regulation regarding employer consent will change in light of the recent court decision.

For further information regarding how this law affects your organization, please contact Laura L. Spring, Esq. at CCB Law.