How does leave to care for a child under the FFCRA apply based on schools’ various reopening plans?

January 6, 2021

Editor's Note: The paid-leave requirements of the FFCRA expired on December 31, 2020. Employers no longer have an obligation to provide paid sick or emergency Family and Medical Leave Act (FMLA) leave to employees for absences related to the coronavirus. However, the tax credit is still available to employers with less than 500 employees who wish to voluntarily offer FFCRA-like leave through Sept. 30, 2021. See American Rescue Plan Doesn't Require Leave.

Employers, as well as employees with school-age children, may be confused as to how and when employees may take leave under the Families First Coronavirus Response Act (FFCRA) to care for children whose school year may not be starting in the classroom, or at least not full time. The DOL has released guidance (DOL, FFCRA Questions 98-100) that clarifies when schools are considered "closed" for the purpose of using FFCRA leave. 

Understanding how and when employees may use this leave for child care will help ensure compliance with the law.

Legal Framework

The FFCRA requires employers with fewer than 500 employees (with limited exceptions) to provide from April 1, 2020, through Dec. 31, 2020, certain types of leave to an employee who is not able to work (or telework) due to his or her child's school being closed because of the COVID-19 pandemic. This leave includes:

  • Emergency paid sick leave (up to 80 hours at two-thirds pay, up to $200 per day), and
  • Emergency expanded Family and Medical Leave Act (FMLA) leave (two weeks unpaid, 10 weeks at two-thirds pay, up to $200 per day).

The DOL defines who is a child, and, for the employer to claim the available tax credit, the IRS requires a statement from the employee that special circumstances exist requiring the employee to provide care for a child older than 14 (IRS FAQs, #44).

The employee may use his or her emergency paid sick leave or other paid time off concurrently with the first two weeks of expanded FMLA leave for a total of 12 weeks of paid leave. This FMLA entitlement is included in, and not in addition to, the total traditional FMLA leave entitlement of 12 weeks in a 12-month period.

Note: If an employee has already used his or her two weeks (80 hours) of emergency paid sick leave for a reason other than child care, he or she would still have 12 weeks of expanded FMLA leave to use for child care needs due to school closures.

Additionally, employees who did not need FFCRA leave prior to summer break may need it now, and employers may not deny leave simply because it was not needed in prior months. For example, an at-home spouse may now need to return to work, or the employee may have determined that working from home full time while caring for his or her child is no longer tenable.

Intermittent Leave

While the current regulations require the employer and employee to agree to use leave under the FFCRA intermittently, the Southern District of New York issued a decision on August 3, 2020, vacating the requirement for employers to agree to a request for intermittent leave for child care due to school or place of care closures. While the applicability of this ruling is currently only assured within that district, other district courts may rule the same way and/or the DOL could amend its regulations to align with this decision. This puts covered employers on notice not to deny intermittent leave for child care reasons without consulting with an attorney.

State and Local Law

Some states and localities have created their own COVID-19-related leave entitlements that may be more generous than those under federal law. Review such laws in the areas in which employees are working to determine any additional compliance obligations.

Leave Eligibility Based on School Reopening Plan

If no other suitable person is available to care for the child, employee eligibility for FFCRA leave for child care reasons due to school closures would be as follows:

School offers only remote learning. In these cases, the school is considered "closed" for FFCRA purposes and an employee may take emergency paid sick leave and/or expanded FMLA leave to care for his or her child.

School requires full-time, in-person attendance. Where such plans exist, schools are considered "open" and neither emergency paid sick leave nor expanded FMLA leave would apply when an employee chooses to keep his or her child at home.

School requires partial in-person attendance and partial remote learning (hybrid plan). In this scenario, leave under the FFCRA would apply during the remote learning days when the employee is not able to work due to the need to care for his or her child. In contrast, FFCRA leave would not apply to any in-person school days during which the employee chooses to keep his or her child at home while school is "open." 

School allows parents to choose between remote learning and in-person attendance. In this scenario, the school is open and in-person instruction is available; therefore, FFCRA leave does not apply when an employee chooses remote learning for his or her child. 



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