FFCRA Q&A

FAQs – The FFCRA:  The FMLA Amendments and Paid Sick Leave Requirements

The Question and Answer series below addresses common questions school districts may have about the Families First Coronavirus Response Act (“FFCRA” or the “Act”). The Act provides for two types of leave: Emergency Paid Sick Leave (“EPSL”), and Expanded FMLA leave (“Expanded FMLA”). Some of the questions below are modeled after the U.S. Department of Labor (DOL) questions and answers regarding the FFCRA. (available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions).

The questions are divided by category, including:

  1. Employee eligibility
  2. Documentation
  3. Leave entitlement
  4. Managing leave and return to work issues
  5. Hypotheticals

EMPLOYEE ELIGIBILITY

EMERGENCY PAID SICK LEAVE

EXPANDED FMLA

DOCUMENTATION

LEAVE ENTITLEMENT

EMERGENCY PAID SICK LEAVE

EXPANDED FMLA

GENERALLY

MANAGING LEAVE AND RETURN TO WORK ISSUES

HYPOTHETICALS

H1: Family Childcare Provider

A teacher requests Expanded FMLA leave to care for her three-year-old daughter. She explains that her aunt normally cares for the child during the workday, but the aunt has a condition that places her at higher risk for COVID-19. The teacher explains that her aunt does not want to care for her daughter right now due to fear that she might contract Coronavirus.

Q: Is the teacher eligible for paid leave under the Expanded FMLA?

A: She likely would be. If her aunt (the child usual care provider) is unavailable, she would qualify. A family member or other individual could be considered the usual child care provider, just as a daycare facility would be.

Q: Assume that the teacher’s husband works in sales and has been working from home since March. He spends much of his workday on the phone or in video conference meetings. Would he be considered a “suitable person” who could take care of their daughter?”]A: Probably not. Given that her husband is working, it is unlikely he could devote sufficient time to care for her. The answer could differ if the child were, for example, a 15-year-old, who is much more capable of taking care of himself or herself.

H2:  School District-Operated Childcare

A school district plans to open a childcare facility for its employees in the fall. An employee uses a different, private childcare facility, and used Expanded FMLA leave in the spring to care for her two young children because their normal childcare is closed due to COVID-19. The employee plans to begin using the district’s childcare in the fall. The employee performs a role critical to the district’s operations, and the superintendent would like to know if she can return to work.

Q: Could the district require this employee to utilize the district’s childcare and return to work?

A:  Probably not. Even if the district offers childcare to employees, it likely could not require this employee to return to work. In describing the qualifying reason for leave to care for a child, the Act only requires that an employee’s place of care be closed, or their childcare provider be unavailable. Though the employee has opted to use the district’s childcare in the fall, her current childcare provider is unavailable, so offering her childcare now would not likely affect her eligibility for leave under the Act.

Q: Assume the fall arrives, and the number of COVID-19 cases has not significantly declined. Though the teacher signed up for district-provided childcare, she states she does not feel safe bringing her children to the district’s facility for fear one of them may contract the virus. If the employee requests FFCRA leave for childcare in the fall, could the district deny the leave if she is using district-provided childcare?

A: Probably so. As long as the district’s childcare is operational and following appropriate guidelines, she would not qualify for leave based on childcare needs.

Q: Could other employees be required to work if district-provided childcare opens?

A: Other employees who currently use district-provided childcare could likely be required to work if the district reopens childcare. In that situation, those employees’ place of care would no longer be closed, and they would not be eligible for leave based on childcare needs. They would still be eligible for other qualifying reasons, but that leave would be limited to two weeks of EPSL.

H4:  In Loco Parentis

A school district employee states he will be taking care of his grandchildren for the foreseeable future. He explains that his daughter (a nurse) and son-in-law (an EMT) are both essential employees and they do not have other access to childcare. The employee says he will be acting in loco parentis to his grandchildren, and requests Expanded FMLA leave.

Q: Is the employee eligible for Expanded FMLA?

A: Probably so.  Assuming he is standing in loco parentis to his grandchildren. To be in loco parentis to a child, a person must discharge the duties of a parent. This means something more than babysitting; the person must take on day-to-day responsibility to care for or financially support the child. To document the in loco parentis relationship, the district may request a statement with the name of the child and description of the in relationship. To be eligible for Expanded FMLA, the employee should also provide a statement that no other person is available to care for the child.

Q: Assume the employee’s wife is retired, but still physically active and in good health. Would the district be liable if it denied the employee’s leave because another suitable person was able to care for the grandchildren?

A: The district would likely not be liable. If the employee’s wife is no longer working and is physically capable of taking care of the grandchildren, the employee would not likely be eligible, because another suitable caregiver is available.

H5:  School Nurse

A school district employs two nurses, one who works at the high school, and the other who works at the elementary school and middle school. The elementary and middle school nurse requested EPSL and Expanded FMLA to care for her children, because the daycare she usually takes them too is still closed. The district’s COVID-19 planning involves critical roles for both of the school nurses.

Q: Is the district required to provide the nurse with paid leave under the Act?

A: No.  The Act exempts healthcare providers from eligibility for paid leave under the EPSL or Expanded FMLA. The Act’s definition of health care provider is fairly broad and would include school nurses.

Q: Now assume the nurse’s child is experiencing symptoms of COVID-19, and she seeks leave to take care of him. Is the nurse eligible for leave to care for her child while he is ill?

A: She is not eligible for EPSL or Expanded FMLA but would likely be eligible for ‘regular’ FMLA, assuming the child has a serious health condition (which would likely include COVID-19).

H6:  Teleworking

Our employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks.

Q:  Can I ask my employees why they are now unable to work or if they have pursued alternative childcare arrangements?

A:  While you may ask an employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason. This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.