Daycare and school choices complicate FFCRA compliance

We have answers regarding questions on employee entitlement to FFFCRA in relation to school and daycare choices.

Posted August 28, 2020

Questions continue to trickle in regarding employee leave rights under the Families First Coronavirus Response Act (FFCRA). Some have to do with schools as they begin to reopen in some fashion. While many schools are reopening as usual, with students returning to the physical school buildings, some are going all virtual, and others are offering a hybrid solution. Other questions have to do with daycare facilities that closed, causing employees to stay home. Over time, alternative options may have become available.

In such situations, employers may wonder what their options are regarding affected employees and the FFCRA.

Q: Dania’s school is reopening but parents have a choice between sending their children to the on-site classroom, or to attend classes virtually. Emma Employee, Dania’s mother, would prefer the virtual classroom, but wonders whether she can then take leave under the FFCRA to stay home with Dania if she chooses the virtual class option.

A: For Emma Employee, if the physical school is open (which it is in her case), it is not closed for purposes of the FFCRA. Therefore, she would not be entitled to FFCRA leave to stay home and care for Dania. This is true even if Emma chose the virtual learning option. The school is still open.

If the physical location where the child received instruction or care is closed, the school or place of care is “closed” for purposes of the FFCRA. This is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” the child is still expected or required to complete assignments.

Q: Armand’s childcare provider, which he had used since his daughter was born, closed her doors about a week ago, ceasing operations altogether. Other daycare providers are, however, still open and others are opening and accepting new children. Armand does not, however, feel comfortable sending his child, Gabrielle, to a different, strange daycare. He would rather stay home and care for her. Is his time off protected under the FFCRA?

A: Whether a daycare provider is appropriate and acceptable for a child is generally up to the parent/employee. A child could have special needs that not all daycare providers could meet. Looking for and vetting a new daycare can also take time. If, however, an employer believes that an employee is taking FFCRA leave for a reason that does not qualify, the employer may explore this with the employee. Maybe ask why a new, suitable daycare has not been found. The situation needs to be addressed on a case-by-case basis. If the employer were to deny FFCRA leave, the employee could file a claim. The DOL would then investigate whether the employee was taking leave fraudulently.

Schools may change their plans regarding reopening as outbreaks evolves. Daycares may open and close. Eventually, such developments may impact employees and, therefore, employers. Remember, the FFCRA is effective only until December 31, 2020, but it could be extended. The Health and Economic Recovery Omnibus Emergency Solutions Act, introduced in May, would extend the FFCRA to December 31, 2021. The bill passed the House and is currently in the Senate, where hearings were held in July. Stay tuned!

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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