COVID-19: FFCRA Update on Leave for School Unavailability

The U.S. Department of Labor (DOL) recently updated its FAQ on the Families First Coronavirus Response Act (FFCRA) by adding questions 98-100. Specifically, the DOL addresses employees taking FFCRA leave to care for children whose school is unavailable or closed for reasons related to COVID-19. As children are returning to school in various forms – remotely, partially in-person, or completely in-person, the DOL has sought to clarify when employees may take advantage of FFCRA leave.

First, where schools are closed for in-person instruction and are only offering remote learning, qualifying employees may be eligible to take FFCRA leave. However, where in-person instruction is offered and an employee elects to have their child receive remote instruction, the employee is not eligible for FFCRA leave.

Second, where schools are offering hybrid instruction models with some days of required remote instruction and some days of required in-person instruction, the days that are required to be remote would qualify eligible employees for FFCRA leave. However, employees may not take FFCRA leave on the days where in-person instruction is required. Similarly, where an employee elects to have hybrid instruction rather than in-person instruction, the employee is not eligible for FFCRA leave.

Employers should take care to review education requirements in their areas of operation. Failure to permit FFCRA leave where applicable is deemed a wage and hour violation.

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