From Stanton Law LLC:
August 1, 2020: Summer is almost over, and the jury is still out on whether kids are heading back to “in-person” school or remaining virtual. In Georgia, some counties are still undecided. DeKalb County just sent out a survey to parents to decide the official plan. Other counties are implementing a hybrid remote and “face-to-face” classroom at the parents’ determination. Some counties have committed to fall semester being completely virtual. Further, private schools may be doing something completely different from the county in which they reside, so employers need to be aware employees will have different childcare needs from perhaps even their neighbor. Regardless of how schools reopen, children going back or attending remotely will impact your business in different ways.
The biggest issues business owners will likely face revolve around paid leave under the Families First Coronavirus Response Act (FFCRA). FFCRA took the back seat when Congress passed the Cares Act and the school year ended. With schools reopening, however, FFCRA issues will be reintroduced to the workplace and remain an important consideration until the end of the year.
Under FFCRA, employees are entitled to emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) if they are unable to work or telework because they need to care for their child because school is closed due to COVID-19-related reasons. Why is this still important, you ask? If a school is only “virtual” and parents need to care for their child at home, they are likely entitled to up to two weeks of paid leave under EPSL and 12 weeks of EFML leave (first two weeks are unpaid and the remaining 10 weeks are paid at a 2/3 rate). Additionally, FFCRA leave may be taken intermittently, meaning the 12 weeks of leave can be broken up into smaller blocks. For example, an employee who took three weeks of leave prior to summer break will have nine weeks of unused leave. As of now, the EPSL and EMFLA are set to expire at the end of 2020. So (absent congressional intervention) the fall semester is the only semester these benefits will come into play, but prudent employers will keep an eye on federal, state, and local programs aimed at providing options for families as the school year moves into 2021.
What should you do if an employee requests FFCRA leave?
Requests for FFCRA leave require an employer and employee to have an open discussion. The law is intended to allow the employer and employee to come to a win-win solution in which the employee is still able to work and take care of their child. Potential outcomes of the discussion could include scenarios in which the employee works a reduced schedule with paid leave supplementing the hours needed for childcare. For example, the employee works Monday, Tuesday, and Wednesday while the employee’s partner takes care of the children, and Thursday and Friday, the caregivers switch roles.
It also remains unclear how the FFCRA will apply when a school is “hybrid” and parents have a choice of virtual or “face-to-face” classrooms. A plain reading of the text suggests that FFCRA leave is available only when school is closed and childcare is unavailable. Employers, however, should carefully address each request for FFCRA leave. Flatly denying FFCRA leave to an employee who is otherwise qualified may expose you to liability for back pay, liquidated damages, attorneys’ fees, and reinstatement if the employee was fired. Because of this, you should seek advice from an employment attorney before denying a leave for request.
What about the employees who no longer have FFCRA leave?
Some employees may not qualify for FFCRA leave, may have already exhausted all their FFCRA leave, or may not have enough leave to last through the end of fall if schools don’t return to full schedules. How should employers approach this problem?
Employers should first understand the scope of this unprecedented problem, recognizing that many parents will be faced with the seemingly intractable choice of sending their kids to school and risking infection but maintaining their income, or keeping their kids home and risking termination. And if the kids are stuck at home, for whatever reason, who is going to supervise them?
None of this is, of course, the employee’s (or employer’s) “fault,” but the players should be prepared to take responsibility for the problem, and both should endeavor to move ahead productively and creatively. Part-time positions, leaves of absence, alternative or modified job duties or hours, and other unconventional working arrangements are all on the table as our communities try to reconcile competing obligations with limited resources. We’re hoping good will, ingenuity, and clear communication will solve most situations, but we will be standing by when folks get stuck.
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