On August 18, 2020, I posted a blog entitled “Are Parents of Minor Children Who Choose To Attend Remote K-12 Classes Entitled To Paid Leave Under The FFCRA?” At that time, I commented that the United States Department of Labor (DOL) had not yet to addressed the question and provided my prediction of how the DOL would respond based on what little DOL guidance existed:

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.

As it turns out, 9 days following my post the DOL decided to weigh in on the topic. On August 27, 2020 the DOL updated its FFCRA “Questions & Answers” to address 3 school attendance scenarios confronting parents eligible for paid leave either under the Emergency Paid Sick Leave Act, or the Emergency Family and Medical Leave Expansion Act: (1) remote only attendance; (2) optional in person or remote attendance; and (3) hybrid attendance model with revolving days of in person and remote instruction.

Remote Only Attendance: According to the DOL, if a secondary school is providing only remote instruction due to COVID-19 related reasons, the school is deemed “closed” and a parent is eligible for FFCRA leave. The DOL clearly continues to focus on whether the school building itself is physically open.

Optional In-Person Attendance: As I suspected would be the case in my original post, the DOL guidance continues to place emphasis on whether the physical school facility is open for instruction to provide an answer in this scenario. Here, the DOL states that a working parent “[is] not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID-19 related reasons.” The guidance goes on to explain that “your child is home not because his or her school is closed, but because you have chosen for the child to remain home …”

Hybrid Attendance Model: The updated DOL guidance addresses this scenario in terms of a model whereby “school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days.” Under this scenario, the DOL’s answer is fairly predictable. When the employee’s child is scheduled to be physically present at school, the parent is not entitled to leave under the FFCRA. When the child is not permitted to be present at school and is therefore attending remotely, the school is “effectively closed” to that child per the DOL, even though the physical building is otherwise open to others.