REMOTE LEARNING, CHILD CARE CLOSURES AND EMPLOYEE TIME OFF
Managing work schedules of employees to accommodate their needs due to the closure of schools and/or child care facilities due to COVID-19 and/or for those employees whose children are home due to remote learning is a difficult issue. Employees may be entitled to paid time off under the Families First Coronavirus Response Act (FFCRA) as explained below.
A summary of the several types of paid leave entitlements are detailed below. A comparison chart can be found here: https://www.dir.ca.gov/dlse/Comparison-COVID-19-Paid-Leave.html
A. FFCRA – Emergency Paid Sick & Expanded Paid Family Leave – There are two types of paid leave available under the FFCRA: (1) Emergency Paid Sick Leave (EPSL) and (2) Expanded Family and Medical Leave (EFMLA). An employee can use either type of leave if they are unable to work or telework due to the need to care for a child. These leaves are available through December 31, 2020 unless extended by the federal government.
- AMOUNT OF TIME OFF: Emergency Paid Sick (EPSL) Leave is 10 days and Extended Family Leave (EFMLA) is 12 weeks, but the first two weeks of the Family Leave is unpaid assuming the employee used their 10 days of Extended Paid Sick Leave. If an employee has used FMLA for any purpose during the prior 12 month period of time, the amount of time taken off for EFMLA is reduced by the amount of time already taken off under FMLA.
- For example, if an employee previously used 8 weeks of FMLA (non-COVID-19 related), the employee can use 4 weeks of EFMLA through the remainder of the employer’s 12-month measurement period. If the employee previously exhausted their FMLA, no EFMLA leave is available unless and until additional FMLA becomes available prior to December 31, 2020. Any EFMLA leave taken will count against the employee’s preexisting FMLA leave.
- ELIGIBILTY: The employee must be primarily responsible for the child’s care and another “suitable individual,” such as a co-parent, co-guardian, or the “usual child care provider,” must not be available to provide the care the child needs. The employee must also have worked for 30 calendar days to be eligible for these leaves.
- AMOUNT OF PAY: The amount of pay is based on the reason for FFCRA leave.
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- Extended Paid Sick Leave: Provides up to 80 hours of leave of paid leave for full-time employees, paid at 2/3 of the employee’s average regular rate of pay up to $200 per day, or $2,000 maximum over the two-week period. A part-time employee is entitled to leave for his or her average number of work hours in a two-week period also paid at 2/3 of their regular rate.
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- Extended FMLA: Provides up to an additional 10 weeks of leave payable at 2/3 of the employee’s average regular rate of pay, up to $200 per day and $12,000 in the aggregate.
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- It’s important to note that if an employee has already taken their Extended Paid Sick Leave (for other COVID-19 reasons), the employee can still take up to 12 weeks of Extended FMLA (depending on prior Family and Medical Leave Act (FMLA) use, if any), but the first ten days are unpaid. During any unpaid EFMLA, an employee may choose to substitute earned accrued paid leave provided by the employer (e.g., vacation or paid time off (PTO)).
- USE OF FFCRA LEAVE: Employees may not be able to use the leave provided by the FFCRA under a few conditions as explained below:
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Employee’s child’s school is open, but the employee opts out of in-person learning and chooses remote learning for their child. What leave is available?
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- EFMLA: FFCRA leave is not available since the child’s school is open; however, if the child cannot attend school due to the school’s reduced capacity, and social distancing rules, so the employee’s child has no choice but to participate in remote learning, FFCRA may be available.
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- EPSL: FFCRA may be available. If the employee has to remain at home to care for a child who has been advised to stay home or otherwise quarantine because they are particularly vulnerable to COVID-19, extended Paid Sick Leave may be available but it is not clear whether the inability to attend in-person instruction would be comparable to a quarantine recommendation.
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Employee’s child’s before/after school care or childcare provider is no longer available due to COVID-19 related reasons. What leave is available?
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- FFCRA – ESPL & EFMLA: These leaves are available. If the place of care (which includes before or after school programs) is closed or has reduced capacity or if the regular childcare provider is no longer available, FFCRA leave may be available. A childcare provider includes individuals paid to provide child care as well as family members.
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Is intermittent FFCRA leave available if an employee is unable to work or telework because they need to care for their child whose school or place of care is closed, or childcare is unavailable due to COVID-19?
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- Yes. Intermittent leave may be taken in any increment of time agreed to by the employer and employee. Only the amount of FFCRA leave actually taken may be counted toward the employee’s leave entitlements.
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Can an employee take FFCRA leave if they were eligible for, and used some or all of their leave under, the FMLA?
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- Yes, EPSL is available regardless of how much leave has been taken under the FMLA. The amount of EFMLA that is available, however, will depend on how much FMLA leave the employee has already used during the employer’s 12-month measurement period.
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B. OTHER TIME OFF – Employers will need to consider what other types of time off/leaves of absence an employee may be entitled to such as:
- PAID FAMILY LEAVE (PFL): California Paid Family Leave (PFL) provides partial wage replacement benefits to employees who need to take time off from work to care for a seriously ill family member (child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child entering the family through birth, adoption, or foster care placement. This is NOT a leave of absence but an income replacement program so the employee would still need to request a leave of absence from work.
- PAID SICK LEAVE (PSL): California and Los Angeles Paid Sick Leave provides workers with PSL that can be used to recover from physical/mental illness or injury; to seek medical diagnosis, treatment, or preventative care; to care for a family member who is ill or needs medical diagnosis, treatment. The Labor Commissioner’s office has provided guidance that PSL can also be used for certain COVID-19 related reasons, if the worker:
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- Is self-quarantining as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities;
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- Has been exposed to COVID-19; or
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- Has traveled to a high-risk area.
- FMLA/CFRA: Employers with 50 or more employees are required to provide 12 weeks of unpaid job protected time off to an eligible employees in a 12 month period for one or more of the following reasons:
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- for the birth of a son or daughter, and to bond with the newborn child;
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- for the placement with the employee of a child for adoption or foster care, and to bond with that child;
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- to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
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- to take medical leave when the employee is unable to work because of a serious health condition; or
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- for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
- PERSONAL LEAVE OF ABSENCE:
Employers may wish to offer their employees a personal leave of absence to attend to their childcare and children’s educational needs until such time as schools resume in person learning and/or other arrangements can be made. However, since this is a complete unknown in terms of time, a personal leave for an indefinite period of time is likely not viable for many workplaces. But still something to consider.
- REMOTE WORK & FLEXIBLE WORK SCHEDULES:
Employers may also need to consider remote work arrangements and/or flexible work schedules permitting an employee to work hours around their child(ren)’s school schedule or child care schedule. Prior to COVID-19 most employees did not believe that remote work arrangements were viable for a variety of reasons but the pandemic has provided an opportunity to test the arrangement and many are finding that permitting an employee to work from home does in fact work.
Flexible schedules can include allowing the employee to work outside of the standard work hours, on weekends, or whenever time allows around their children’s care and school obligations.
DEPARTMENT OF LABOR WAGE & HOUR DIVISION PUBLISHES NEW FAQ’s
The new FAQ’s are as follows (the numbers correspond to the number in the full set of FAQs by the WHD).
98. My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The 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. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
- Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.
99. My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
- No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.
- Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.
100. My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
- Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.
In summary, employers should consider and evaluate how they can best accommodate their employees’ needs and still maintain business operations. This should entail creating policies and procedures, on-going discussions with employees as to needs and expectations and to consider all possible options.
DISCLAIMER: Please note, the above is not an exhaustive list of all the changes to the law or resources for individuals and businesses. These new laws bring new challenges that often need to be handled on a case-by-case basis. Given the current fluid and rapidly evolving nature of the COVID-19 pandemic, this memo is provided solely as a reference tool to be used for informational purposes and is subject to change based on evolving information and it should not be construed or interpreted as providing legal advice related to any specific case or cases.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.