Online School and Emergency FMLA

All of the recent discussion about how to handle instruction in the new school year has seemed to produce a mixed bag of proposed plans. Some schools are postponing their starting date. Many have decided to provide online instruction only. Others are opting for hybrid of some class time and some online classes. A number of schools have announced full time, in-person classes. What all this means for employers is that employees who are parents of school-age children will likely need to be home and away from work at least some of the time in the coming months.

The emergency family and medical leave under the Families First Coronavirus Response Act (FFCRA) provides 12 weeks of leave to care for a son or daughter whose school or childcare facility is closed due to Coronavirus. The Department of Labor (DOL) has published guidance that schools implementing online instruction are considered “closed” for purposes of FFCRA leave.

The first two weeks of the 12 weeks of leave are unpaid, but employees may use the FFCRA’s 80 hours of emergency paid sick leave or any accrued paid leave the employer provides. The remaining 10 weeks are paid at 2/3 of the employee’s regular rate of pay. The leave may be taken intermittently with the employer’s permission. Request for the leave can be written or oral. Employees must provide the name of the child and the name of the school or childcare facility that is closed. Employers may also require a copy of any notice or other communication confirming the closure.

The DOL has not issued any guidance on what circumstances might justify an employer’s refusal to permit someone to take the leave. It is possible that employers may receive multiple requests for leave during the same time period, and those absences could seriously impact the operation. While there might be a reluctance by some employers to discuss who may be considering such leave, knowing who may need to be gone well beforehand will help in production planning. If your employees don’t already know about such leave, they will likely soon be hearing about employees in other workplaces taking advantage of it.