As our nation's children return to school – in varying ways – the U.S. Department of Labor (USDOL) has issued further clarification (FAQ Nos. 98-100) regarding how to apply Families First Coronavirus Response Act (FFCRA) leave related to school and place of care closures. The updates are as follows:
- For schools operating on an alternate day (or other hybrid-attendance) basis (i.e., the school is open each day, but students alternate between days attending school in-person and days participating in remote learning), eligible employees may take paid leave under the FFCRA on days when the employee's child is not permitted to attend school in person and must instead engage in remote learning (because the child's school is "closed" due to COVID-19 related reasons), so long as there is a need to actually care for the child during that time and only if no other suitable person is available to do so.
- For schools that provide a choice between in-person or remote learning and the employee opts for remote learning, eligible employees are not eligible to take paid leave under the FFCRA because the child's school is not "closed" for COVID–19 related reasons.
- For schools that are beginning the school year under a remote learning program but have announced they will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year, eligible employees may take paid leave under the FFCRA while the employee's child's school remains closed. If the child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school's operations as set forth above.
Two on-demand webinars on this topic are available here and here. A list of our prior advisories regarding FFCRA developments is available below:
- Employer Obligations Under Families First Coronavirus Response Act
- Department of Labor Answers FFCRA Questions
- IRS Promises Quick Recovery of Tax Credit for Families First Coronavirus Response Act Leave
- Department of Labor Provides Further Guidance on the FFCRA
- Department of Labor Answers More FFCRA Questions
- FFCRA Leave Documentation: What Is Required and What Is Recommended?
- USDOL Publishes Temporary Regulations Interpreting FFCRA
- USDOL Issues Updated FFCRA FAQs
- DOL Issues Guidance on Eligibility for FFCRA Paid Leave for Summer Camp and Program Closures
- NY Federal Court Creates Uncertainty by Vacating Portions of USDOL's Final Rule Interpreting FFCRA
We will continue to keep you updated on all FFCRA developments.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.