New School Year Raises FFCRA Questions

Allen Smith, J.D. By Allen Smith, J.D. August 24, 2020

​Employers can expect an uptick in requests for Families First Coronavirus Response Act (FFCRA) leave in the first few weeks of the new school year. Some employers are going beyond what the law requires in providing time off, as many employees' 12 weeks of emergency family leave was exhausted during the last school year. But other employers can't afford to do that.

"Employers and employees are trying to figure out how to balance the need to get work done and meet employees' child care needs," said Marjory Robertson, assistant vice president and senior counsel with Sun Life in Wellesley Hills, Mass.

Family and Medical Leave Act time off and FFCRA leave run concurrently, said Jeff Nowak, an attorney with Littler in Chicago. "Employers must not forget about state and local laws that may offer even greater protections to employees than the FFCRA," he added.

Once FFCRA leave is exhausted, an employer could voluntarily grant additional paid leave. But the employer then would not be able to recoup the payroll tax credit for that time because the employee would be legally ineligible under the FFCRA, said Scott Cruz, an attorney with Greensfelder, Hemker & Gale in Chicago. The employer also would have set a precedent that it would need to follow for all employees, which could lead to "a Pandora's box the employer may not want to open," he warned.

Options When All FFCRA Leave Has Been Used

When FFCRA leave has been exhausted, many employers are getting creative to help employees deal with these challenging times, according to Chelsea Mesa, an attorney with Seyfarth in Los Angeles. For example, some employers are providing separate unpaid, unprotected personal leave or placing employees on temporary layoffs, she said.

"We're also seeing an increase in the allowance of flexible or reduced working schedules—such as a few hours in the morning and again in the afternoon so that the parent can oversee schooling during the day," she said. "But not every job situation lends itself to this kind of flexibility."

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Robertson noted that "employer culture as well as the nature of the business are probably going to be the most important factors affecting what can and will be done to help employees who have exhausted their paid leave under the FFCRA or who were not eligible for it." The FFCRA applies to certain public-sector employers and private-sector employers with fewer than 500 employees.

"Employers that are more employee-focused will make efforts to be flexible and help their employees during this challenging time by, among other things, recognizing that employees may not be able to work to their fullest capacity and may need time away to assist children or care for family," she said. "Employers with office or nonmanual work may have an easier time accommodating employees than businesses that use manual work or are public-facing, such as retail and hospitality."

Options for workers no longer covered by the FFCRA include modified schedules, including part-time work.

"As a rule, every organization should have empathy and offer flexibility, to the extent that they can, for working parents and caregivers," said Laura Hamill, chief people officer and chief science officer at Limeade in Woodinville, Wash. "Managers should ask how they are doing, really listen and be empowered to make reasonable accommodations." Although not required by the FFCRA, such accommodations might include relaxing rules about not making personal phone calls or swapping shifts.

At Limeade, some workers invite their kids to do classwork side by side in the office, she said, and some remote workers have moved across the country to be closer to grandparents who can help with child care. "These strategies might seem radical, but if employees are able to do their jobs well while supporting education, there really isn't a question" of letting workers pursue them, Hamill said.

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Intermittent Leave

Employers should consider intermittent leave for workers and may be required to provide it under the FFCRA.

In early August, a federal court in New York struck down the Department of Labor's (DOL's) FFCRA regulation requiring that employees obtain permission from the employer to take intermittent leave to care for their children when school buildings are closed and learning is being conducted remotely or when child care isn't available.

"Although we may argue whether this decision has broad application beyond New York, employers ignore this decision at their peril, as it clears the way for employees to take intermittent leave for child care obligations," Nowak said.

Tory Summey, an attorney with Parker Poe in Charlotte, N.C., said that until the DOL either appeals the decision or issues additional rulemaking, "there will remain uncertainty over whether an employer can deny a request for intermittent leave to care for a child" under the FFCRA.

Workers' Eligibility for FFCRA Leave

The type of schooling available is relevant for FFCRA obligations, Cruz said. If the school is open and offering the option of virtual or in-person classroom learning and the parent chooses virtual learning, the parent would not be eligible for paid leave under the FFCRA, he said.

If the school's plan is three days of in-person learning and two days of mandatory virtual learning, a parent may be eligible for paid leave under the FFCRA on the days the school building is closed.

Arguably, if the employee's spouse or partner is available to take care of a child, the employee wouldn't be eligible for FFCRA leave.

"But the law doesn't really allow for much verification of this fact, other than essentially taking a parent's word for it and having them put that word in writing," Mesa said. "Many employers are unlikely to seriously question these assertions."

Moreover, both parents could use intermittent leave and alternate the use of it, noted Chelsea Celsor Smith, an attorney with Hall Estill in Oklahoma City.

"Employees will always remember how you treated them during this time," Hamill said. "Let's provide the bright spot in a very challenging year."


[How have you adapted to the pandemic? Share your story with SHRM's Government Affairs Team as they educate decision-makers on crafting policies on work, workers and the workplace.]



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