As Schools Reopen, DOL Offers Guidance About Paid Leave and Pandemic Unemployment Assistance
Author: David B. Weisenfeld, XpertHR Legal Editor
August 31, 2020
With back-to-school season approaching, or already here depending on one's location, the US Department of Labor (DOL) has published guidance directly relating to the reopening of schools. The DOL's Wage and Hour Division has expanded its list of frequently asked questions for workers and employers about what qualifies for paid leave under the Families First Coronavirus Response Act (FFCRA).
The new FAQs explain an employee's eligibility for paid leave relative to the multitude of formats and schedules that schools have announced as they plan to reopen, including blending in-person with remote learning. Some key questions that employees may likely ask their employers include:
My child's school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They may attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
The DOL reports that the employee is eligible for paid leave under the FFCRA on days when their child is not permitted to attend school in person, as long as they need the leave to actually care for the child during that time and no other suitable person is available. It reasons that the school is effectively "closed" to the child on days when in-person attendance is not possible. Thus, paid leave on each of the child's remote-learning days is appropriate.
My child's school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
The employee is ineligible to take paid leave under the FFCRA because, the DOL notes, the child's school is not "closed" due to COVID-19-related reasons. Where a child is home because of a conscious choice by the employee, rather than because their school is closed, there is no right to FFCRA leave.
However, if a child is under a quarantine order or a health provider has advised them to self-isolate or self-quarantine, then the employee may be entitled to take paid leave to care for the child.
My child's school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA?
As suggested by the answers to the above questions, the employee would be eligible to take paid leave while their child's school remains closed. If it reopens, the availability of paid leave under the FFCRA will depend on the specifics of the school's operations.
In addition to the FAQs, the DOL's Employment and Training Administration (ETA) released guidance to provide states with information regarding the eligibility of individuals who are caregivers for Pandemic Unemployment Assistance (PUA) under the CARES Act.
An individual may qualify for PUA if they are ineligible for regular unemployment compensation, extended benefits and pandemic emergency unemployment compensation and self-certify that their unemployment stems from a school or facility closure that stems from the coronavirus public health emergency.