Labor & Employment Law Daily New WHD and ETA guidance address employee leave issues related to school reopening
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Tuesday, September 1, 2020

New WHD and ETA guidance address employee leave issues related to school reopening

By Pamela Wolf, J.D.

The WHD has added new FFCRA FAQs (and has begun adding the date); the ETA issued a new UI Program Letter on the eligibility of caregivers for PUA.

On August 27, the Labor Department’s Wage and Hour Division (WHD) and Employment and Training Administration (ETA) announced the release of new guidance related to the reopening of schools.

WHD guidance. The WHD published new frequently asked questions (FAQs) for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) as it pertains to the reopening of schools.

The guidance explains eligibility for paid leave relative to the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning. The information explains the benefits and protections available under both the paid sick leave and the expanded family and medical leave provisions of the FFCRA.

New FAQs. The new guidance adds these questions and answers:

Question: 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 are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?

Answer: Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

Question: 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, for example, 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?

Answer: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

Question: 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 in these circumstances?

Answer: Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

ETA guidance. The new ETA guidance (Unemployment Insurance Program Letter No. 16-20, Change 3) provides states with information about the eligibility for Pandemic Unemployment Assistance (PUA) under the CARES Act of individuals who are caregivers. Similar to WHD’s FAQs, the ETA’s guidance explains when parents and caregivers may be eligible for PUA under various circumstances related to their child’s school’s reopening plans.

The guidance explains how states should evaluate an individual’s eligibility for PUA when:

  • A child or other person in their household for whom the individual is the primary caregiver attends a school operating on an alternate day basis;
  • The individual chooses remote learning for their child when in-person instruction is available; and
  • The school remains closed as a direct result of the coronavirus.

Further information. The new guidance documents complement a library of resources and tools that both the WHD and ETA provide for workers and employers as they navigate the changes in the workplace brought by the COVID-19 pandemic. Resources related to FFCRA paid leave include extensive questions and answers, an online tool for employees to determine their eligibility for paid leave, and short videos and infographics explaining the law’s benefits.

The WHD provides information on common issues that employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA and on job-protected leave under the FMLA at https://www.dol.gov/agencies/whd/pandemic.

The ETA provides an extensive list of resources relating to the pandemic at https://www.dol.gov/agencies/eta/coronavirus and guidance about unemployment insurance at https://www.dol.gov/coronavirus/unemployment-insurance.

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