By: James P. Sikora

Originally written and published for the Vancouver Business Journal on September 3, 2020.

As this unusual summer winds down and a new school year begins, the COVID-19 pandemic continues to affect us all. Employers may see an increase in leave requests from employees who continue to try to navigate these difficult times. To help them evaluate these leave requests, employers should be aware of recent developments under the Families First Coronavirus Response Act (FFCRA).

Leave Available Under the FFCRA

The FFCRA provides job-protected leave and pay to eligible employees when they are unable to work due to certain COVID-19 related reasons. Employers with fewer than 500 employees are subject to the FFCRA. In summary, the FFCRA provides two forms of leave:

• Child Care Leave: Employees are eligible for up to 12 weeks of leave when they are unable to work or telework due to (1) the need to care for a son or daughter under the age of 18 because the child’s school or childcare facilities is closed; or (2) the child’s usual childcare provider is unavailable.

• Emergency Paid Sick Leave: Employees are eligible for up to 80 hours of paid sick leave when they are unable to work or telework because the employee (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine because of COVID-19; (3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis; (4) is caring for an individual subject or advised to quarantine or isolate; (5) is caring for a son or daughter whose school or place of care is closed, or the childcare provider is unavailable due to COVID-19 precautions; or (6) is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The FFCRA and corresponding regulations outline eligibility criteria, pay requirements, and job protections in more detail. Employers who are not familiar with FFCRA requirements are encouraged to familiarize themselves with them.

U.S. District Court Creates Uncertainty by Invalidating Key Regulatory Provisions

To implement the FFCRA, the U.S. Department of Labor (DOL) issued emergency regulations in April. These regulations included several key provisions:

• Work-availability requirement: The regulations required the employer to have work available for an employee to perform for that employee to be eligible for FFCRA leave. Put another way, the regulations excluded FFCRA leave for employees whose employers did not have work for them.

• Broad definition of health care provider for purposes of the health care provider exemption: The FFCRA allows employers of an employee who is a “health care provider” or emergency responder to elect to exclude the employee from FFCRA leave benefits. The regulations provided a broad definition of “health care provider” for this exemption, which included “anyone employed” by an entity that provides medical care.

• Employer consent for certain intermittent leave: The regulations limited the use of intermittent leave to certain employees who did not pose a public health risk and required the employer’s consent.

• Documentation requirements. The regulations required employees to, among other things, submit documentation to the employer before taking leave.

The State of New York filed a lawsuit challenging several key parts of the regulations as exceeding the DOL’s authority under the FFCRA. In early August, a federal judge agreed and invalidated the key regulatory provisions described above.

The judge’s order leaves a regulatory vacuum and creates uncertainty for employers. The order does not indicate whether it applies outside of New York, and the DOL has not officially announced how it will respond. Recent news reports suggest the DOL is rushing to complete updated regulations, but the DOL has not yet confirmed these reports. For the time being, significant uncertainty about an employer’s obligations under the FFCRA remain pending further developments and employers should proceed cautiously when addressing situations related to the invalidated regulations. This includes employers in health care who may be considering applying the exemption to certain employees.

DOL Guidance on Child Care Leave for Return to School

The DOL recently published three new FAQs concerning an employee’s eligibility for child care leave as we approach school reopening. Employers can expect to see increased numbers of leave requests as the school year begins and many schools utilize remote learning. The DOL addressed two specific scenarios that employers may encounter as the new school year begins.

First, the DOL addressed situations in which a child’s school is operating on an alternate day or other hybrid-attendance basis. The DOL clarified that an employee is eligible to take FFCRA leave on days when the employee’s child is not permitted to attend classes in person and must instead engage in remote learning, provided the employee needs to care for the child during this time and no other suitable person is available to do so. The DOL explained that the child’s school is effectively “closed” for FFCRA purposes when the child cannot attend in person.

Second, the DOL addressed situations in which the school gives the employee a choice between having a child attend in person or participate in remote learning. The DOL explained that FFCRA leave is not available to care for a child whose school is open for in-person attendance. If the employee chooses for the child to stay at home and the school is open, the DOL states the employee is not eligible for FFCRA leave.

While the FFCRA provides much needed paid leave for employees affected by COVID-19, the emergency nature of the legislation and regulations have presented difficulties for employers. Employers should continue to keep a close watch out for ongoing developments related to the FFCRA as we move into the fall to ensure they are evaluating leave requests based on current information.

For more information, contact attorney James P. Sikora at james.sikora@landerholm.com.

The above should not be construed as specific legal advice and is intended for general information purposes only.