On August 27, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued guidance for employers and employees about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) related to the reopening of schools. The guidance appears in question-and-answer format (FAQs) with updates to address eligibility for paid leave under the FFCRA relative to the remote and in-person learning formats schools have announced as they plan to reopen. 

The FFCRA permits eligible employees to take up to 2 weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specific reasons related to COVID-19. Eligible employees may take both types of paid leave to care for their children whose school or place of care is closed, or whose child care provider is unavailable due to COVID-19-related reasons. The new FAQs address whether employees may qualify for paid leave when a child attends a school operating on an alternate-day basis, when a parent chooses remote learning even though in-person instruction is available, and when a school begins the academic year with remote learning but shifts to in-person instruction if conditions permit. 

Specifically:

• Alternate-day learning formats include situations where a school is open each day but students alternate between attending school in person and participating in remote learning. Employees are eligible for paid leave under the FFCRA on those days the child must participate in remote learning, so long as the employee needs the leave to care for his or her child and only if no other suitable person is available to do so. 

• Voluntary remote-learning formats include situations where schools provide parents a choice between having their child attend in person or participate in a remote-learning program. Employees who have chosen remote learning due to a generalized fear that their child may contract COVID-19 are not eligible for paid leave under the FFCRA, because the school is not “closed” due to COVID-19-related reasons. Employees who have chosen the remote-learning option because their child is under a quarantine order or has been advised by a health care provider to self-quarantine may be eligible for paid leave under the FFCRA if the child is incapable of self-care and depends on the employee for care if providing care prevents the employee from working and teleworking. 

• Changes in learning formats occur where schools have opened under a remote-learning program in the beginning of the school year but may change to in-person attendance when circumstances permit. Employees are eligible to take paid leave under the FFCRA during the period of remote learning. Whether employees will be eligible for paid leave under the FFCRA should the school reopen for in-person attendance will depend on the particulars of the reopening, such as whether the school offers alternate-day and voluntary remote-learning formats. 

Employers should be prepared to address employee inquiries regarding eligibility for FFCRA child care leave. Under the FFCRA employees must provide documentation to request child care leave, including the dates for which FFCRA leave is requested, the qualifying reason, the name of the child being cared for, the name of the child’s school, and a representation that no other suitable person will be caring for the child during the period that the employee has requested to take leave. Employers should ensure compliance with the documentation requirements of the FFCRA in order to seek tax credits for wages paid during the leave.