What if Schools Don't Reopen or Partially Open?
What leave will employees be entitled to receive?
In the early months of 2020, everyone assumed that we would just need to take care of our children at home for a few weeks, maybe through spring break, and we would be fine. Then it was "just make it to summer." Now summer is winding down, and many kids are not going back to school full-time (at least not in person) any time soon. This creates tremendous challenges for families as well as employers.
The United States averaged more than 1,000 new coronavirus-related deaths for the tenth day in a row on Wednesday, August 5th, as fatalities remain high following a peak in new cases. States are scrambling to find a way to open schools – and the temptation is to model our school openings after European and other countries. This is impractical because, as of August 8, 2020, the US has failed to curb the virus substantially. Contrary to some overly positive "cherry-picked" reports, we all need to understand that 180 countries are doing better than the US in terms of what counts most; the death rate caused by COVID-19. The U.S. rate is currently 485 deaths per 1 million citizens. For instance, Canada stands at 237 per million citizens; Germany 110 per million, Russia 99 per million, Norway 47 per million, Japan 8 per million, and South Korea has only 6 Coronavirus deaths for every million citizens. This is not political—if we're not aware of this information, we can't properly prepare.
Let's hope our death rate gets better. Still, with the continued rise in U.S. coronavirus cases and uncertainty regarding whether and in what manner schools will reopen in the fall, it is critical for providers, clinics, hospitals, and other businesses to understand the developing leave rights under federal, state and local law.
The Emergency Paid Sick Leave Act (EPSLA)
Who is eligible - generally:
- Generally, if you employ fewer than 500 employees, you are a covered employer that must provide paid sick leave and expanded family and medical leave
- Certain employers with fewer than 50 employees may be exempt from the Act's requirements to provide specific paid sick leave and expanded family and medical leave.
- Certain public employers are also covered under the Act and must provide paid sick leave and expanded family and medical leave.
Be sure to know your situation, check first
For Specific additional information, you can determine your FFCRA Eligibility as an Employer or Employee here: https://www.dol.gov/agencies/whd/ffcra/benefits-eligibility-webtool/employee
A few highlights:
Under the federal Families First Coronavirus Response Act [FFCRA]: https://ogletree.com/insights/the-families-first-coronavirus-response-act-faqs-the-fmla-amendments-and-paid-sick-leave-requirements-of-the-new-law/ there are two major provisions: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).
Under the EPSLA, employers with fewer than 500 employees and certain public employers must pay sick leave of up to 80 hours, or roughly 10 days, to full-time employees who are:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- Advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for an individual subject to a quarantine or isolation order by the government or a health care provider.
- Caring for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19. This may not sound like sick leave, but it's one of the EPSLA's six grounds for such leave.
- Experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
The Emergency Family and Medical Leave Expansion Act (EFMLEA)
For employers of fewer than 500 employees, an additional 10 weeks of family leave at two-thirds of regular wages is potentially available under the EFMLEA to care for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19. The FFCRA does not have requirements for private-sector employers with 500 or more employees.
There are two other options available for school or place-of-care closures or child care unavailability related to COVID-19: emergency paid sick leave and expanded family and medical leave. An employee can use both buckets for this type of leave, but only for up to a total of 12 weeks of leave. To be eligible for this leave, 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.
Last Spring vs. Now
The U.S. Department of Labor (DOL) has indicated that an employee's ability to use FFCRA leave last spring will not necessarily affect whether the employee can use FFCRA leave this fall. For example, an employee may be able to use leave under the FFCRA in the coming months, even if the employee was able to work (in person or remotely) when schools were closed last spring. An employer should not assume that the same schedule/arrangement would work for an employee moving forward. The DOL has acknowledged that circumstances may change, including employees realizing they are not able to provide childcare and work remotely at the same time effectively. Parents may also conclude that because remote learning may be here to stay indefinitely, they need to devote more time and attention to it this fall. Similarly, some employees may need to use leave because a co-parent, who may have used FFCRA leave in the spring to care for the child, has now exhausted the maximum 12 weeks of leave.
Some school reopening plans are generating new questions. For example, if a school opens for in-person instruction, but an employee voluntarily chooses the remote learning option for his or her child, is FFCRA leave available? Generally speaking, the answer is no. To be eligible for FFCRA leave, the physical location where the child receives instruction or care must be closed. If, however, the school is operating at reduced capacity to comply with social-distancing guidelines, such that the employee's child has no choice but to receive remote learning, or if the school uses a hybrid model where in-person instruction is only provided on certain days of the week, FFCRA may be available.
The DOL also clarified that if a childcare provider or school is open to some students, but not to the employee's student (due to capacity or other COVID-related limitations), the school or childcare provider is still considered "closed" to that student who is unable to attend. This means that employees may be eligible to use FFCRA leave when needed to care for children at home due to a "hybrid" model under which students physically go to school a few days each week and attend virtual school the other days.
State and Local Laws
While employers with 500 or more employees are not governed by a federal law that would require them to provide leave to employees to care for children out of school, some states and municipalities have passed paid sick leave laws that are triggered by a COVID-19-related event or absence and do not have a maximum employee threshold.
For example, several cities in California, as well as Colorado, New Jersey, Oregon (currently expiring on September 13, 2020), and the District of Colombia have extended some or all of the benefits of the FFCRA to employers with 500 or more employees. Other states and municipalities have more limited leave laws that apply to school closures and/or public health emergencies. As with the FFCRA, if employees have not already exhausted these leave benefits; they may be entitled to job-protected leave to care for a child whose school is closed.
Again, employers might need to consult with their attorneys and plan ahead—have discussions with employees to learn how school reopening plans may impact their work schedules, whether remote work is or remains an option; and whether any added flexibility to their schedules. For instance, working around the school day or taking intermittent leave may provide adequate solutions. Good communication before deadlines can go a long way toward reducing anxiety and finding creative solutions that enable employees to remain productive while taking on the added role of at-home educator.
And keep on keeping up on these things because:
A New York Court Order Struck down Portions of DOL's FFCRA Regulations just this week.
However, the district court's decision does not make clear whether its decision to vacate portions of the final rule applies only to the state of New York or on a broader, nationwide basis. Given this, employers should consult legal counsel before making any decision as to whether or not to provide paid FFCRA leave.
Yes, this is changing daily and it is a challenge. Keep on checking with your HR organizations, your State Laws and Google the latest once in a while.