School Is Remote—Can I Get Leave to Stay Home with My Kid?

The Families First Coronavirus Response Act of 2020 (FFCRA), passed by Congress in March, mandates up to 12 weeks of paid, job-protected time off for workers who must stay home to care for a child because the child’s school or daycare is closed due to coronavirus precautions. (The FFCRA applies only to employers with fewer than 500 employees.)

The pay rate during the leave must be at least two-thirds the regular daily or weekly rate of pay, up to a maximum of $200 per day. This paid leave is reimbursed to the employer by the federal government through payroll tax credits. The worker must have been on the job for at least 30 calendar days.

The law clearly entitles an employee to an extended paid FFCRA leave if a school is open only for remote instruction. But this fall, many schools are operating on a hybrid basis, having students alternate between days attending school in person and days in remote learning. In such cases, are parents entitled to FFCRA leave on the days their children must engage in remote learning?

The Labor Department answered these questions in online FAQs posted August 27.

The new guidance makes clear that an employee may take FFCRA leave to care for a child whose school is operating on a hybrid basis. Leave may be taken for a day at a time or longer. Limitations are that the employee must actually need the leave to care for the child during that time, there must be no other parent or other suitable person available to do so, and the employee must not have already used up his or her 12 weeks of FMLA leave. (The FFCRA leave comes out of the employee's FMLA leave bank.)

If a school assigns students entirely to remote learning, an employee may take a single FFCRA paid leave of up to 12 weeks. The leave may not be broken into separate periods unless the employer agrees.

SUPPORT LABOR NOTES

BECOME A MONTHLY DONOR

Give $10 a month or more and get our "Fight the Boss, Build the Union" T-shirt.

If a school schedules remote learning on a staggered basis, such as two days a week or every other week, an employee must be permitted to take FFCRA leave intermittently until it is exhausted. Employer agreement is not a prerequisite.

On the other hand, the guidance makes clear that an employee is not entitled to FFCRA leave if the school provides a choice between attending in person and participating in remote learning, and the parent—perhaps out of concern that a child might contract COVID-19 and bring it home to the family—chooses the remote learning option.

The FFCRA expires December 31, 2020, unless extended by Congress.

HEALTH CARE PROVIDERS

The FFCRA allows employers to deny paid leaves to employees who are "health care providers" or "emergency responders." The original regulations defined heath care providers as anyone working for a hospital or other health care facility. Due to a court decision against it, the DOL has recently issued a new definition limiting the provider exclusion to doctors and other persons providing health care services, for example, nurses and medical technicians. Other facility employees, such as building maintenance and food service workers may take FFCRA leaves.

Robert M. Schwartz is a retired union labor lawyer. He is the author of several books including The Legal Rights of Union Stewards and The FMLA Handbook. His books can be purchased from the Labor Notes online store.

This article was updated on September 14 to clarify the rules surrounding intermittent leave and address the new definition of health care providers.