July 13, 2020
Authored by: Christy Phanthavong
With school reopening plans currently a hot topic across the country, a natural corollary is: What do those plans mean for employee requests for leave to care for a child under the Families First Coronavirus Response Act (“FFCRA”)? Under the FFCRA regulations and previous guidance issued by the Department of Labor (“DOL”), the answer appears to be that if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.
The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (“Child Care Leave”). See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; 29 CFR §§ 826.20(a)(v), (b).
Early on during the pandemic, the DOL made clear through its Q&A guidance that Child Care Leave is available when instruction has moved entirely online, due to the physical location of a school being closed: