Labor & Employment Developments Blog

As summer winds down, a lot of attention has been given to schools resuming classes.  Some schools are meeting in person fully or partially but many have moved to online classes for the foreseeable future.  Even schools meeting in person may be forced to change course depending on circumstances, e.g. students or teachers contracting COVID-19.  All of this means a great deal of uncertainty for working parents and a major issue for employers who will have to manage attendance and leave issues. 

As an initial matter, let’s review the current legislative landscape.  The Families First Coronavirus Response Act (FFCRA) requires employers with less than 500 employees to provide up to 80 hours of paid leave to employees for certain COVID-19-related reasons and expands the Family and Medical Leave Act (FMLA) to provide employees up to 12 weeks of partially paid leave to care for a child when it is necessitated by school or child care closings.  Some employees may have already used some or all of their allotted leave earlier in the year but those who have leave remaining can still use it until the FFCRA expires on December 31, 2020.

Employee Eligibility

A frequent question is whether employees are eligible for leave in cases where their child’s school has gone online.  According to the U.S. Department of Labor (DOL), when the physical location of a school is unavailable to the student, the employee is eligible for leave even if online school is available.  Employees with children going to school on a part-time basis, e.g. due to social distancing requirements, would only be eligible when the child cannot go to the physical school building.  Also, employees who have been teleworking throughout the spring and summer with children at home are not necessarily barred from taking leave when school starts as circumstances may have changed.  Employers should seek documentation from employees for leave requests to care for a child.  The documentation must include:

• The name(s) of the child(ren) being cared for;
• The name of the school, place of care or childcare provider that closed or became unavailable;
• A statement representing that no other suitable person is available to care for the child(ren) during the period of requested leave.

Employers should be flexible about the form of the documentation.  Employers may ask for clarification about a change in circumstances leading to the request for leave but may not deny leave if the above requirements are satisfied. 

Intermittent Leave

FFCRA regulations state that intermittent leave is available for child care but only with the employer’s consent.  Employers should consider carefully whether to approve intermittent leave requests because some employees may not have many viable options depending on how their schools are approaching the COVID-19 issue.  Moreover, a New York federal district court recently struck down the DOL’s rule requiring employer consent for intermittent leave, calling it into question in New York at a minimum.

Other Laws

Finally, employers should bear in mind that several municipalities and states have adopted laws that expand the FFCRA leave rights to employees of employers with more than 500 employees (e.g. Colorado, New Jersey, the District of Columbia, several California cities) or provide other leave rights that may be available for COVID-19 related school closures.  Employers should familiarize themselves with the applicable laws in the jurisdictions where they do business.

For assistance with employee leave issues, contact any member of our Labor & Employment Group, or the KMK Law Coronavirus (COVID-19) Response Team for further assistance.