Schools across the country are announcing their reopening plans. For some, this means students will physically return to the classroom; for others, it means online classes or a hybrid operation. For working parents, what the schools decide may determine whether they need to take leave from work if their children remain at home. Jackson Walker Labor & Employment attorney Judy Garner walks through some of the issues that both employers and employees are facing right now regarding employee leave eligibility made available through the Families First Coronavirus Response Act (FFCRA) or the Family Medical Leave Act (FMLA).

Employers should understand how they are affected by the FFCRA when it comes to their employee’s benefits for emergency paid sick leave, and expanded family and medical leave. Different states have different requirements, and employers should know how these rules across different jurisdictions come into play and adjust their employee policies accordingly.

Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s July 22nd, and this is Jackson Walker Fast Takes.
School districts in Texas and across the country have begun announcing reopening plans for the 2020-2021 school year. The plans vary, and some school districts are only offering virtual instructions, while others are offering both in-person instruction and virtual instruction. I asked Jackson Walker Labor & Employment attorney Judy Garner to fill us in on some of the issues this may present to employees and employers across the state. Judy, it’s good to talk with you again.

Judy Garner: Good to talk to you again, Greg.

Greg Lambert: So, are there any leave requirements that employers should be aware of as we move into the 2020-21 school year?

Judy Garner: Yes, there may be several leave laws and policies that come into play. The most significant consideration is leave offered under the Families First Coronavirus Response Act (FFCRA), or the Families First Act. The Families First Act applies to employers with fewer than 500 employees. There are two buckets of leave offered under the Families First Act, and they are the Emergency Paid Sick Leave, and Expanded Family and Medical Leave. An eligible employee can use leave from either bucket, if they are unable to work or telework due to the need to care for a minor child whose school or place of care has been closed or whose usual childcare provider is unavailable due to COVID-19. Now, the Families First Act provides for paid leave. However, employees are only eligible for up to 12 weeks of leave under the Families First Act. If an employee utilized their Families First leave previously, maybe to care for a child at the end of the 2019-2020 school year, then that usage actually counts against the employee’s 12-week leave allotment going into the 2020-21 school year. I will also note that in order to be eligible for paid leave under the Families First Act, the employee must be primarily responsible for their son or daughter’s care and must certify that another suitable individual, such as another parent or guardian, is not available to provide the care.

Greg Lambert: So, is an employee eligible for the Families First Leave if their child’s school offers in-person instruction, but the employee opts-out for a virtual or remote learning option instead?

Judy Garner: I would say probably not. In order to be eligible for leave under the Families First Act, the physical location where the child generally receives instruction or care must be closed. So, in the event that the employee voluntarily decides not to send their child to school for in-person instruction when it is indeed available, he or she likely will not be eligible for leave under the Families First Act. However, I will note that if a school is operating at a reduced capacity, so that a child is only permitted to receive in-person instruction a couple of days a week—maybe on Monday, Wednesday, Friday—and remote instruction on the other days, then Families First leave may be available on the days when the child receives remote instruction. Also, in the event that a child’s school was open, but the child has been advised by a healthcare provider to stay home or quarantine because they are vulnerable to COVID-19, that parent/employee may be eligible for Emergency Paid Sick Leave, or even traditional leave under the Family and Medical Leave Act, in that case if they are unable to work or telework because they are providing care for that child that has a health issue.

Greg Lambert: Well, most of our discussion so far is focused on school closings. However, there are additional leave considerations for employees if the child’s before- or after-school care provider is unavailable to COVID-19, is that correct?

Judy Garner: Yes. An employee may be eligible for Families First leave if their son or daughter’s place of care is closed, or their childcare provider is unavailable due to COVID-19. This requirement directly impacts before- and after-school care options. For instance, if a child were returned to school for in-person instruction, the child’s traditional before- or after-school care provider may not be available due to COVID-19 concerns, if that person or care provider has health concerns. In the case of childcare providers, an employee may be eligible for Families First leave if the childcare provider is simply unavailable due to COVID-19, not necessarily closed. So, there is a difference with regard to childcare providers and school closures.

Greg Lambert: Judy, at the beginning of our discussion you mentioned that the FFCRA applies to employers with less than 500 employees. Are employers who are not covered by the FFCRA required to provide leave to employees who are unable to work in order to care for a child whose school is closed?

Judy Garner: Yes, and that’s a great question. Several states and local jurisdictions require employers to provide employees with leave in order to care for children in the event of a school closure due to a public health emergency such as the COVID-19 pandemic. Some of those jurisdictions require paid leave and some do not. All employers, whether covered by the Families First Act or not, should check to see if they are impacted by any of those state and local leave requirements. Additionally, depending on the circumstances, an employee may be eligible for traditional FLMA leave if they need to care for a child whose school is closed, or who is unable to attend school because of a health issue. And finally, employers should review their leave policies to determine if employees may be entitled to either paid or unpaid leave pursuant to employer policies.

Greg Lambert: Well Judy, thanks for sharing your insight on this issue.

Judy Garner: Thank you, Greg.

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The music is by Eve Searls.

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