Department of Labor Updates FFCRA Frequently Asked Questions

Continuing concerns regarding COVID-19 have led Wisconsin’s public and private schools to implement a variety of different plans for the beginning of the new school year. These plans include in-person schooling five days per week to a fully virtual (remote) learning plan, or a hybrid approach combining in-person and remote learning approaches. Parents and their employers have been watching the schools very closely to prepare for conflicts between work schedules and responsibilities supervising children who are attending remote school from their homes.

One factor both parents and employers need to consider is the application of the federal government’s paid leave benefits implemented as part of the Families First Coronavirus Response Act (FFCRA). The FFCRA created several circumstances in which employees may be eligible for paid leave through the Emergency Paid Sick Leave Act (EPSLA) and/or the Emergency Family Medical Leave Expansion Act (EFMLEA). The FFCRA is discussed in more detail in a previous Legal Update and the Department of Labor’s (DOL) implementing regulations are also discussed in more detail in a previous Legal Update.

The EPSLA and the EFMLEA provide limited paid leave for employees of covered employers who are unable to work or telework due to childcare responsibilities during a period of COVID-19 related school closure, unless the employee is able to secure a reasonable alternative for childcare.[1]

When the FFCRA first became effective on April 1, 2020, Wisconsin’s schools were closed by order of the Secretary of Health Services. As of now, no such order is in place for the coming school year. Still, in many schools, students will not initially be attending school in-person full-time thereby placing parents in the same predicament regarding child care needs.

As the school year fast approached, significant questions remained regarding the application of the EPSLA and EFMLEA in circumstances in which students are receiving education at home through remote instruction. On August 27, 2020, the DOL added a series of new FAQs to its guidance. The new FAQs (numbers 98-100) clarify the EPSLA and EFMLEA application for parents depending on the school plan applicable to their children.

FFCRA Guidance Regarding School Closures

The new FAQs explain the EPSLA and EFMLEA application to parents who are otherwise eligible and have not already exhausted available leave time in the following school attendance scenarios:

1. School is open, but not for full time in-person education. The first of the new FAQs (Number 98) addresses leave for parents whose school-aged children will be attending in-person on some days and remotely on others (typically referred to as the hybrid plan) or will be attending entirely remotely. According to the DOL, these employees are eligible for EPSLA and EFMLEA on any days that their children are not attending school in-person based on the school’s schedule.

2. School is open for at least some amount of in-person education, but the employee/parent has opted for a fully remote instruction method for their child. Most schools providing in-person or hybrid education have also provided parents with the option to place their children in the school’s fully virtual instruction program. The DOL has now explained, in FAQ Number 99, that these parents are not eligible for EPSLA or EFMLEA during times that their children would be in school but for the parent’s election to opt for fully remote attendance. The DOL notes that if the child were under a quarantine order or advised by a health care provider to quarantine, the parent might still qualify for paid FFCRA leave. Leave under these circumstances is provided by the EPSLA, but is not a category of eligible leave under the EFMLEA. Likewise, if the child were diagnosed with COVID-19 and being treated for it, the employee may qualify for standard FMLA benefits to provide care for a child with a serious health condition.

3. School is closed for in-person education, but will re-evaluate and may change at some point during the year. As schools begin the year in one instructional method, the plans typically include a process of continuing evaluation of local circumstances that may move the instructional method one way (toward more in-person instruction) or the other (towards more remote instruction). According to the DOL’s FAQs (Number 100), a parent’s eligibility for FFCRA leave may likewise change.

The DOL guidance establishes that, for purposes of the FFCRA, a period of virtual or remote instruction is a school closure, unless the parent has voluntarily opted for virtual instruction where in-person instruction is offered by the school. Likewise, the DOL guidance is written in such a way so as to consider each period of virtual instruction as a separate period of eligibility, and not as an intermittent need for leave. For example, an employee whose children are attending school in-person two days per week and virtual three days per week is permitted to use EFMLEA on each of the virtual days, but not the other days. By contrast, if that same employee’s child’s school has elected to provide a fully virtual program, the employee may take EFMLEA for up to the total number of weeks available to the employee, but may take leave intermittently during that time (e.g. two parents plan to switch off days at home) only with the employer’s approval (FAQ Number 20).

Reminders Regarding EPSLA and EFMLEA

Both leave categories created by the FFCRA are one-time benefits for those who qualify. Any usage of EPSLA counts towards the total leave available (80 hours for full-time employees and pro-rated hours for part-time employees based on the employee’s typical two-week work schedule). Employees who have already used EPSLA leave, either during the school closure in the spring, or based on one of the other circumstances covered by the benefit, do not have additional time under the EPSLA for the remainder of the calendar year.

The EFMLEA likewise is cumulative from April 1, 2020, when the FFCRA became effective. EFMLEA benefits; however, are also part of the cumulative total of 12 weeks of FMLA leave available for an eligible employee during the employer’s selected counting period. For example, considering an employee of an employer who counts FMLA on a calendar year basis, if that employee took 6 weeks of FMLA following a surgical procedure in January 2020, the employee is only eligible for 6 weeks of EFMLEA on those days that the employee’s child’s school offers only remote instruction.

Both the EPSLA and EFMLEA expire on December 31, 2020, unless federal legislation extends them in some fashion.

This discussion relates only to FFCRA paid leave benefits. In every situation involving employee absences during this time, employers need to also consider their own paid and unpaid leave benefits, the standard state and federal FMLA benefits, potential considerations under other employee protection laws, such as the Americans with Disabilities Act and related accommodations requirements, and, where applicable, the provisions of individual employee contracts.

This coming school year will undoubtedly be a challenging one for schools, students, parents, and employers struggling to keep employees working, many of whom are still in the midst of significant financial difficulties due to extended business closures and continued limited economic activity, not to mention experiencing anxiety and apprehension about the uncertainty over the end of the COVID-19 pandemic. We will continue to monitor developments regarding the FFCRA and other related areas, as they develop.