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As we approach six months since Michigan schools were closed for the Spring and Michiganders were ordered to stay home due to the COVID-19 pandemic, we now face new questions about how parents and employers alike will handle the challenges of the 2020-2021 academic year. As of April 1, the Families First Coronavirus Response Act (“FFCRA”) created some paid leave opportunities for working parents whose children require care due to closure of school or place of care in the wake of COVID-19.

Paid Leave Under The FFCRA

The FFCRA established two categories of paid leave to help employees navigate the new realities of the COVID-19 pandemic. Qualifying employees are eligible for Emergency Paid Sick Leave or Expanded Family Medical Leave if their minor son or daughter’s school or place of care is closed on account of COVID-19.

1. Emergency Paid Sick Leave provides up to 80 hours of paid sick leave for full-time employees (and a prorated amount for part-time employees) at two-thirds pay during that period of time.
2. Expanded Family Medical Leave in the form of two weeks unpaid leave (which may be taken concurrently with Emergency Paid Sick Leave) and up to 10 weeks paid at two-thirds pay.

Department of Labor, Wage and Hour Division, Families First Coronavirus Response Act: Employer Paid Leave Requirements.

Who Counts as a Son or Daughter Under the FFCRA?

In guidance issued after the FFCRA became effective, the Department of Labor (“DOL”) clarified that the FFCRA’s use of the term “son or daughter” means an employee’s own child, which includes biological, adopted, foster children, stepchildren, legal wards, or any child they standing in loco parentis.  It can also include a son or daughter age 18 years or older who (1) has a mental or physical disability and (2) is incapable of self-care because of that disability.

In addition, if an employee seeks to use FFCRA leave to care for a child older than 14 years, the Internal Revenue Service (“IRS”) requires a written statement that special circumstances exist in order for the employer to qualify for the FFCRA tax credit for employee Leave. IRS FAQs #44.

When is a School Closed for COVID-19 Purposes?

On August 27, 2020, the DOL updated its COVID-19 FAQs to address different scenarios where employees may take FFCRA leave because their child’s school or place of case has closed. Summarized, the updated guidance instructs the following based on the different manners in which schools and places of care are open or closed.  In all cases, employers are encouraged to seek documentation from employees regarding the potential eligibility to remain home to care for the child(ren).

(Entirely) Virtual School

Rule: Where a child’s school is open only in a virtual format, it is deemed closed for purposes of the FFCRA.

Implication: In this scenario, an employee could seek to use FFCRA leave to supervise a child whose engaged in virtual learning. If the employee’s child’s school district were to reopen for in-person classes for all students five days a week, the employee would no longer be able to utilize the school closure for FFCRA eligibility.

School Adopted Alternate-Attendance Policy

Rule: Where a child’s school has adopted an alternate-day attendance policy (where the child attends classes in-person and virtually), it is deemed closed for purposes of the FFCRA on the days of the week the child is assigned to learn virtually.

Implication: An employee may seek to use FFCRA leave on days his or her child is assigned to learn virtually. This has the practical implication of the leave being used intermittently, meaning the employee’s FFCRA leave will last longer than 12 calendar weeks.

Parent Election for Virtual Learning

Rule: If a child’s school is open, but the parent elects to have the child(ren) participate in virtual learning in lieu of in-person attendance, the school is not closed for FFCRA purposes.

Implication: Parents electing virtual learning over available in-person instruction are not eligible to receive paid leave under the FFCRA.

School Open, Child Subject to a Quarantine Order

Rule: If the school or place of care is open, but a child is subject to a medical order requiring quarantine (either because they have COVID-19 or because they have a medical condition that would result in severe consequences if contracting COVID-19), a parent may take FFCRA leave to monitor their child. DOL, COVID-19 FAQs, #63.

Implication: Parents whose child cannot attend an open school or place of care because the child is subject to a quarantine order can take FFCRA leave to care for their child, so long as the parent is otherwise eligible for FFCRA leave.

Other Considerations

It is important to remember that FFCRA paid medical leave may not be an employee’s only option.  Employers are encouraged to review applicable collective bargaining agreements, employment contracts, and employee handbooks or manuals, as well as potential applicability of Michigan’s Paid Medical Leave Act, to identify other types of applicable or available leave—whether that leave is paid, or not.

During this time, employers could look for creative solutions to ensure employees do their job and still meet childcare obligations, because FFCRA leave is only available if an employee is unable to work or telework! Potential solutions are seemingly endless, but obviously limited by space and budgets.  Some employers are hosting “learning pods” where children can do their virtual learning under adult supervision in or near the workplace. Some employers are readjusting to (or remaining in!) a remote structure. Some are discovering they no longer have the bandwidth to manage remote operations.

Like other COVID-19 related issues, how to respond when an employee requests FFCRA leave requires a fact-sensitive inquiry; there is not a one size fits all approach! As always, please do not hesitate to contact us if you have additional questions about how school or place of care closures will impact your workforce. Our dedicated team is continuing to monitor the situation as it develops.

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This communication is not intended to constitute legal advice. Since the emergency regulations and guidelines are evolving rapidly and each of your circumstances are unique, we encourage you to reach out to us if you have questions about this or other COVID-19 related government action.