09/02/2020

School Is In: The DOL Issues Revised Guidance For Childcare Leave

September 2, 2020

When the Families First Coronavirus Response Act was first issued, the focus was on the immediate issues presented by the closing of schools and childcare facilities. Little thought was given to the long-term or what might happen when schools reopened at the end of the summer. Well, the end of the summer is upon us, schools have reopened or are reopening, and the DOL finally published FAQs providing guidance on a few of the situations that have been presented upon school reopening. (That brings the DOL FAQs up to an even 100!)

In general terms, the DOL responses are fairly straight forward: Employees are eligible to use their remaining Families First leave if the child’s school is closed, but if the school is open for in-person learning, leave may not be available if a parent has selected a remote learning option.

Alternate Day (Or Other Hybrid Attendance) Reopenings

While some schools have opened on a full-time basis, others have reopened on a “hybrid” basis. For example, a group of students may attend school Monday through Wednesday of a given week, then Thursday and Friday the following week. Another group would have the opposite schedule. FAQ #98 made it clear that employees are eligible to take available Families First leave on days when the child is not permitted to attend school in person and must engage in remote learning. That, of course, would apply where the employee needs leave to actually care for their child and only if no other suitable person is available to do so. Thus, the school is considered to be “closed” on days that the child cannot attend in person.

Parents’ Choice

Where a parent is offered a choice between in-person attendance or participation in a remote learning program, Families First leave is not available because the school is not “closed” and the child could attend, if the parent wished. However, FAQ #99 provides that if the child is under a quarantine order or has been advised by a healthcare provider to self-isolate or quarantine due to COVID-19, the employee may be eligible to take available paid leave to care for the child.

Delayed School Decision

Finally, the DOL also provided some common sense advice: that if a school is beginning under a remote learning program because of COVID-19 but has reserved the right to evaluate circumstances and make a later decision about reopening for in-person attendance, the employee is eligible for Families First leave while the school remains closed. However, if the school reopens at a later date, the availability of paid leave under Families First would depend upon the particulars of the school’s operation on a case by case basis.

The latest DOL FAQs are, by and large, straight forward and common sense based in their conclusions. That advice, however, as previous DOL revisions have indicated, is subject to reconsideration by the DOL at any time. Additionally, if an additional relief package is passed by Congress and signed by the President, there may be additional changes to the leave or paid leave provisions. Employers should note that “legacy FMLA” leave, if not exhausted or if it has been replenished, is still available to employees who have, or a family member has, a “serious health condition” regardless of compliance with the specified grounds for extended emergency paid sick leave and extended FMLA as provided by the Families First Act. Employers are advised to keep their eyes on the DOL for the inevitable future developments!

But Wait… It’s Not Over

As a final note, as the result of a recent ruling by a federal judge in New York, certain portions of the Families First leave policies were invalidated. For example, in the original legislation, all “healthcare workers” were excluded from its coverage. That category was expanded to include anyone working for a healthcare-based employer, and not just those administering health care. The court invalidated that exclusion. Additionally, it invalidated a provision which required an employer’s approval if the employee wished to take intermittent leave because their child’s school or daycare had closed. The DOL is currently working on revised regulations to plug these and some of the holes created by the judge’s decision.

The situation is a fluid one, and we will continue to keep our clients advised!

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