Employers Continue To Struggle With Employee Leave Laws That Protect Parents In The Wake Of Schools Reopening
With the start of the school year upon us, employers continue to struggle with employee leave laws that protect parents. In response to the pandemic, Congress passed sweeping legislation (the Family First Coronavirus Response Act or FFCRA) that provides, among other benefits, up to 12 weeks of paid leave for parents who are unable to work (or telework) to care for their child because their child’s school or day care is closed due to COVID-19. For employers, any covered payments under FFCRA are eligible to be reimbursed to the employer by the federal government through a 100% tax credit. As a result, it is often a win-win for employers and employees – the employee gets paid, and in the end, the employer is reimbursed.
However, FFCRA did not anticipate the hodgepodge of school reopening plans that may lead to an employee staying home to care for their child, but which are not covered by the FFCRA. As a result, the win-win situation the FFCRA was intended to create may not be available.
FFCRA Benefits
FFCRA’s benefits were far-reaching (our original blog about it is here). FFCRA created two new benefits for employees who worked for employers with less than 500 employees: (1) Emergency Family Medical Leave (FMLA+) and (2) Emergency Paid Sick Leave (EPSL). Among other things, FMLA+ and EPSL provided paid benefits for employees who need to care for a child whose school or childcare provider is unavailable or closed for COVID-19 related reasons. Accordingly, if a qualified employee met the requirements of FMLA+ and EPSL, that employee would be eligible to take 12 weeks of job protected leave paid at two-thirds of the employee’s regular rate of pay. The employer would be reimbursed by a tax credit.
After the legislation was passed, the U.S. Department of Labor (DOL) provided additional clarity (or in some cases muddied the waters) with regulations and FAQs. The DOL provided that the employee had to provide the following information:
- The name of the child being cared for;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A statement from the employee that no other suitable person is available to care for the child.
Accordingly, FFCRA benefits are only available if the school is closed or unavailable.
Schools Begin to Reopen
Each school district has its own unique plan for reopening its schools, but many of them allow parents the option of choosing either a full remote learning experience or in-person learning. In this situation, under the current regulations and guidance from the DOL, a parent who chooses not to send their child to school would not qualify under FFCRA because the school is neither “closed” nor “unavailable.”
Accordingly, it is critical for employers to ensure they understand all the facts around an employee’s request to claim FFCRA benefits. If an employer pays an employee who does not qualify under FFCRA, the employer would be ineligible to receive the 100% tax credit for payments and would be on the hook for these payments.
To address this dilemma, employers must develop FFCRA policies requiring employees to complete proper leave request forms. These forms must be carefully drafted to comply with the DOL’s regulations (which limit the information an employer can require), but also provide sufficient information to protect the employer. In this situation, an employer would have written documentation from any employee who was paid FFCRA benefits to minimize the risk that the employer would not qualify for the 100% tax credit. As this situation continues to evolve, it is important that employers stay vigilant in this ever-changing landscape and work closely with their employment lawyer. If you have any questions about the FFCRA or any other employment laws, please reach out to Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at 312-368-0100.
