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Back to School and Application of FFCRA Leaves with the Various Return to School Models

As schools across our area reopen (physically and remotely) for children this fall the U.S. Department of Labor (DOL) added new guidance on August 27, in its frequently asked questions (FAQs), to address the leaves that may be available to employees under the new learning models in the schools.

The Families First Coronavirus Response Act (FFCRA) provides up to 12 weeks of leave for eligible employees of employers with fewer than 500 employees in the event an employee needs to care for child(ren) because of school or childcare closures due to COVID-19 related reasons. The employee may be eligible to take two weeks (up to 80 hours) of emergency paid sick leave (EPSL)  and up to an additional 10 weeks of paid expanded family and medical leave (EFMLEA) (provided the employee has been employed for at least 30 days) if the employee is unable to work (or telework) because they are caring for a child whose school or place of care is closed (or child care provider is unavailable). Currently, leaves available under EPSL and EFMLEA are due to end on December 31, 2020.

Provided an employee has leave available under EPSL or EFMLEA, an employee may be entitled to these FFCRA leaves when the school is operating either partially or entirely remotely.  To address some of these issues, the DOL issued the following guidance:

  • Completely remote model: if a child’s school has moved to entirely remote instructions, the school is considered “closed” for purposes of EPSL and EFMLEA. An employee can take the paid leave if the employee “needs the leave to actually care for his or her child during that time and only if no other suitable person is available to do so."

  • Hybrid model: if a child’s school is operating on an alternate day or hybrid attendance model (some days remote and some days in person), the employee can take paid leave, on the days when the child is not permitted to attend school in person and must participate in remote learning.

  • Optional approach model: if the school gives the parent a choice between having the child attend remotely or in person, and the parent elects the remote model, the DOL has indicated that the school is not “closed” due to COVID-19 reasons and the paid leaves are not available to an employee.

When an employee qualifies for leave under EPSL, the time out is for a maximum of two weeks (80 hours), and is paid at a rate of 2/3 of the employee’s regular rate of  pay, capped at $200 per day and $2,000 in the aggregate.  Leave taken under EFMLEA is also paid at a rate of 2/3 of the employee’s regular rate of pay, capped at $200 per day and $10,000 in the aggregate.  Employees who had previously taken FMLA during the previous 12 months, and depending on how long the employee was out on FMLA, the employee may not have the full 12 weeks available to them for leave under EFMLEA as the employee is only permitted to take 12 weeks between FMLA and EFMLEA combined.

Considering that schools were closed earlier this year, many employees may have already exhausted their FFCRA leave benefits.  There has been no indication at this time that the U.S. Congress is considering any expansion of these paid leave benefits.  Employees who have no time remaining under the FFCRA leaves may need to use their own PTO to cover their time out for these scenarios.

PMP will continue to monitor the situation and provide updates when necessary.


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