FFCRA: School Reopening (or Not) Plans

      Working parents are facing myriad challenges as children resume their studies in alternative formats due to the continuing COVID-19 crisis. In what situations are employees eligible for child-care-related leave or unemployment benefits? 

      DOL PROVIDES CLARITY ON CORONAVIRUS-RELATED CHILD CARE LEAVE
      On Aug. 27, the DOL released more questions and answers related to new school schedules and paid leave under the Families First Coronavirus Response Act (FFCRA). The FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of sick leave and an additional 10 weeks of paid family leave—paid at two-thirds the employee's regular rate—when employees are unable to work because they need to care for a child whose school or child care provider is closed or unavailable for COVID-19-related reasons. To read the full article click HERE.
      The DOL also issued a letter on expanded unemployment eligibility under the Pandemic Unemployment Assistance provisions, which cover people who are unable to work because they are providing primary care for a child who is unable to attend school because of the pandemic, among other reasons.
      "Under these federal stimulus programs, parent-employees with school-age children could access certain benefits in cases where there was a school closing," said Robert Robenalt, an attorney with Fisher Phillips in Columbus, Ohio. "Now that schools are making decisions on reopening, the DOL has provided guidance as to when parents may be entitled to leave or unemployment benefits under these federal programs."
      HYBRID LEARNING FORMATS:
      ● "Under these federal stimulus programs, parent-employees with school-age children could access certain benefits in cases where there was a school closing," said Robert Robenalt, an attorney with Fisher Phillips in Columbus, Ohio. "Now that schools are making decisions on reopening, the DOL has provided guidance as to when parents may be entitled to leave or unemployment benefits under these federal programs."
      ● Some schools, for example, are alternating in-person and distance learning days based on students' last names, and students are allowed to attend in-person classes only on their allotted days. Under these circumstances, parents are eligible to take paid leave on days when their child is required to engage in remote learning, so long as the parent actually needs the leave for child care purposes and is the only suitable person available. The 'off' days still count as closure days for purposes of entitlement to FFCRA leave.
      ● For schools that are close for now but might later decide to open for in-person learning later in the year. Employees are eligible to take paid leave under 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."
      ● A person who is not receiving paid-leave benefits may be eligible for Pandemic Unemployment Assistance if he or she is "unable or unavailable to work" due to child care needs while a school is operating online or in a hybrid format. ● To Read the Full Article Click HERE
      PARENT’S CHOICES MAY IMPACT ELIGIBILITY:
      ● Many schools are giving parents the option between having their children attend in-person classes or participate in a remote learning. Parents can choose to keep their children home for a variety of reasons, including out of concern that their child will contract COVID-19 on campus. Are employees eligible for FFCRA or unemployment benefits if in-person learning is offered and they opt for online learning?In this scenario, employees are not eligible for FFCRA leave or unemployment benefits because they made the choice to keep their children home.
      ● FFCRA leave and unemployment benefits are only available if the school is closed for reasons related to COVID-19. "The DOL guidance reflects that these benefits programs are reserved only for cases in which the school has chosen to conduct distance learning or some hybrid form of distance learning,"o However, the DOL noted, parents may be eligible for paid leave to care for a child who has been ordered to quarantine or self-isolate.o Employees may also be eligible for leave under certain federal or state laws if their child is immunocompromised or otherwise truly at a greater risk of serious illness and therefore can't attend in-person classes. ● To Read the Full Article Click HERE

      • What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave? 

        Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:• The name of your employee requesting leave;• The date(s) for which leave is requested;• The reason for leave; and• A statement from the employee that he or she is unable to work because of the reason.
        If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.
        If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you must also document:• The name of the child being cared for;• The name of the school, place of care, or child care provider that has closed or become unavailable; and• A statement from the employee that no other suitable person is available to care for the child.
        Private-sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.● Click HERE to read the full article.

      • Employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

        To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.Click HERE to read the full article.

      • When does the small business exemption apply to exclude a small business from the provisions of the emergency paid sick leave act and emergency family and medical leave expansion act?

        An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing:• paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and • expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.● Click HERE to read the full article.

      • If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

        A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:• employer employs fewer than 50 employees;• leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and• an authorized officer of the business has determined that at least one of the three conditions described aboveThe Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.Click HERE to read the full article.

      Back-To-School Considerations for Employers During the COVID-19 Pandemic.

      ● Proactively communicate with employees1) Communication is always important, but even more so during the COVID-19 pandemic. As employers continue to transition their workforces back to the workplace, providing as much notice as possible to employees will be key, particularly those who may need to make alternate childcare arrangements.
      ● Be flexible, when and wherever possible1) Consider work-from-home arrangements, flex or staggered schedule alternatives, and intermittent leave options for employees having difficulty managing their workload and childcare responsibilities.2) Review leave policies and obligations3) Employers should assess any applicable leave policies, including the potential increased use of accrued paid time off by employees seeking to accommodate unexpected childcare challenges
      ● Review leave policies and obligations1) Employers should assess any applicable leave policies, including the potential increased use of accrued paid time off by employees seeking to accommodate unexpected childcare challengesClick HERE to read the full article.