When the Families First Coronavirus Response Act (“FFCRA”) was passed in late March 2020, the nation was confronted with a fairly uniform new reality in terms of K-12 education. Both public and private schools across the United States closed their doors and quickly attempted to reopen in an online setting. This presented one of the primary motivations for the FFCRA. Working parents whose children previously were in supervised school, preschool and after-school care settings were suddenly confronted with the prospect of caring for and educating their children at home, potentially for weeks on end without having sufficient paid leave or even the opportunity for unpaid leave.

The FFCRA provides parents of minor children under their care 2 forms of paid leave intended to alleviate that need. The first benefit was the Emergency Paid Sick Leave Act. This granted paid leave at 2/3 of the employee’s regular wages (subject to maximum caps applicable to highly compensated employees) for up to 80 hours (2 weeks) when the employee is unable to work because “the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.” The second and more extensive benefit comes under the Emergency Family and Medical Leave Expansion Act. This is an amendment of the Family and Medical Leave Act (“FMLA”) that extends FMLA coverage to employees who are “unable to work … due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” The first 2 weeks (80 hours) of this leave is unpaid; although Congress envisioned that this 2 week period would be paid in most instances under the Emergency Paid Sick Leave Act. The remaining 10 weeks (weeks 3 – 12) is paid leave at 2/3 of the employee’s regular wages, again subject to a maximum cap.

As the coronavirus pandemic has lingered into the start of a new school year, new circumstances are causing employers to address whether certain employees with K-12 school age children are entitled to these forms of paid leave once school begins. Unlike the Spring, when all school facilities were physically closed, parents throughout Tennessee and many other states are presented with an educational choice either to allow their children to attend school in person at the school facility, or to continue to receive remote instruction and avoid potential COVID-19 exposure. The question has therefore arisen whether parents who choose to keep their children at home out of genuine concern for COVID-19 can be denied paid leave benefits under the FFCRA?

To date, the United States Department of Labor (“DOL”) has not directly addressed this particular question. It has, however, indicated in a series of “Questions and Answers” published with respect to the FFCRA that the key inquiry for purposes of entitlement to paid leave due to school closings is that “the physical location where your child received instruction or care is now closed …” The DOL went on to state that a school is deemed “closed” if personal attendance is not occurring, but instruction continues to be provided online or by distance learning. Clearly, in the DOL’s only written analysis on the topic, if a K-12 school is physically open for classes, it cannot be regarded as “closed” and a parent is thereby not qualified for any form of paid leave under the FFCRA designated for child care due to closed schools.

Employers should keep in mind, however, that circumstances may very well arise that will entitle parents to claim FFCRA paid childcare benefits, even when the child’s school or day care is physically open. First and foremost is the circumstance in which the child contracts coronavirus, is experiencing coronavirus symptoms or has been instructed to self-quarantine. In those instances, a parent is qualified to receive up to 80 hours Emergency Paid Sick Leave for having to care for the child. A second related instance arises when a child who in fact attends school in person is instructed to remain home due to a need to quarantine. In this situation, not only would the parent be entitled to the 80 hours paid Emergency Paid Sick Leave, but should the child not be able to return to school before expiration of that leave, it is possible the DOL might determine the parent is also entitled to Emergency Family and Medical Leave. In this scenario, the DOL could expand the term “closed” to mean “closed to a particular student.” Another variation exists for schools that adopt a hybrid personal attendance/remote attendance model. Under these, students are physically present at the school facility a certain number of days and then attend remotely for another period. This better enables school systems to socially distance throughout the school facility. Employers need to understand that parents of children learning under such a system would be entitled to FFCRA paid leave for the periods their child attends remote learning sessions.

Finally, employers need to remember that the Americans with Disabilities Act (“ADA”) may come into play when considering a parent’s need to stay home with a child with a disability that renders the child more at risk to contracting coronavirus or a more serious result from it. The ADA protects not only employees with disabilities, but also employees who are “associated with” persons with disabilities. This category of persons includes an employee’s children. If a parent receives an instruction from the child’s medical provider not to subject the child to the risks associated with physical presence at a school, the DOL might again deem the term “closed” to encompass a child who cannot attend due to a documented disability. Even if that is not a concern, federal courts routinely hold that a limited period of 1-2 weeks unpaid leave granted to an employee may be a required reasonable accommodation for a disability.

For these reasons, employers subject to the FFCRA should remain in regular communication with legal counsel as these scenarios present themselves. The FFCRA remains in effect until December 1, 2020.