The DOL has released additional Q&As, while updating others, in order to provide further guidance and clarification under the FFCRA as it relates to 1) schools back in session, and 2) New York court decisions regarding the Act. Being armed with the latest information will help make planning more productive and conversations more supportive within your organization.

For starters, with schools back in session, FFCRA may or may not be applicable under the various learning models we are experiencing: virtual, hybrid and in-person instruction. The guidelines are quoted below. Any applicable leave is still subject to, and shall not exceed, the FFCRA limits.

May I take paid leave under the FFCRA?

Question #98

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?

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. FAQs 20–22 further address this scenario.

Question #99

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?

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. FAQs 20–22 further address this scenario.

Question #100

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?

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.

What employer assistance ensures compliance under the Act?

Lastly, the following Q&As, quoted below, pertain to New York v. Scalia, Civ. No. 20-3020-JPO (S.D.N.Y). These further assist employers in ensuring continued compliance under the Act.

Question #101

When were the invalidated provisions of the Department’s FFCRA paid leave regulations vacated?

August 3, 2020. The Department first issued its FFCRA paid leave regulations on April 1, 2020. Only certain provisions of those regulations were at issue in the lawsuit New York v. Scalia, Civ. No. 20-3020-JPO (S.D.N.Y.). The challenged provisions were vacated when the District Court issued its opinion and order on August 3, 2020. As of August 3, 2020, the work availability requirement provisions, the provision requiring an employee to obtain his or her employer’s approval before taking FFCRA leave intermittently, the provision defining “health care provider” for purposes of employees whose employer may exclude them from FFCRA leave, and the provision requiring documentation of a need for leave prior to taking leave were vacated. The remainder of the FFCRA paid leave regulations were unaffected.

Question #102

#102. Where did the District Court’s order vacating certain provisions of the FFCRA paid leave regulations apply?

Nationwide. Based on the specific circumstances in the case and language of the District Court’s order, the Department considers the invalidated provisions of the FFCRA paid leave regulations vacated nationwide, not just as to the parties in the case.

Question #103

#103. When do the revisions to the Department’s FFCRA paid leave regulations become effective?

September 16, 2020. The revised explanations and regulatory text become effective immediately upon publication in the Federal Register on September 16, 2020. This means they are effective from September 16, 2020 through the expiration of the FFCRA’s paid leave provisions on December 31, 2020.

Updated and Active DOL Questions

The following have been updated and take effect 9/16/2020. You can view further details by clicking on each #question.

#16. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?

#21. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

#22. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

#56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

As always, MRPR stands ready to assist on these questions or other uncertainties you face, COVID-related, and otherwise. Please contact us for more information.