Hunton Employment & Labor Perspectives

As Fall settles in and schools reopen, many employees with children (and their employers) are breathing a masked sigh of relief. Back to school means back to work, and back to work means increased productivity and greater job stability during a time when productivity and stability are needed.

However, the reality is that not all students are back in the classroom. Some students are in school full-time; some are in school part-time and remotely learning part-time; and some are learning remotely full-time. To complicate matters further, there is a possibility that students who are in the classroom will need to return home for full-time remote learning if the student, a family member, classmate or teacher has contracted or been exposed to COVID-19. All of these factors contribute to confusion amongst employers and employees alike with respect to what protections and obligations are afforded or imposed by the myriad of leave laws.

The federal Families First Coronavirus Response Act (FFCRA) was passed in the early days of the pandemic to stymie the spread of COVID-19, protect employees’ jobs, and provide some pay to those who must stay home for COVID-19-related reasons. That law requires employers with fewer than 500 employees to provide some paid sick leave or expanded family and medical leave to employees who have to quarantine, care for others with COVID-19, or care for children at home due to school closures. Exemplifying the uncertainty around application of the FFCRA, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued 97 Frequently Asked Questions between the date the law was signed on March 11, 2020 and August 26, 2020. On August 27, 2020, with the school year descending upon a confused and beleaguered population, the WHD added questions 98-100 to its FFCRA Frequently Asked Questions to further address school-related concerns, including whether parents are eligible for paid leave if their child's school:

• only partially reopens;
• opens but parents choose remote learning; and
• offers only remote learning but may reopen for in-person attendance at a later time.

Among other things, FAQs 98-100 clarify that employees are eligible for paid leave under the FFCRA only when schools are not closed to their children. Employees who choose remote learning when school is open are not eligible for FFCRA paid leave.

Then, on September 11, 2020, the WHD published a new temporary rule regarding FFCRA paid leave, which revises and clarifies the guidance provided by the initial rule that was struck down by the Southern District of New York. Among other things, the new rule:

• narrows the definition of "health care provider" to include only employees who are health care providers under the FMLA and those providing diagnostic, preventive, treatment, and other necessary patient care services;
• affirms that leave can only be taken when employees have work available from which to take leave and applies the work-availability requirement to all FFCRA qualifying reasons for leave;
• affirms that employees must obtain their employer's consent to take intermittent FFCRA leave;
• clarifies that employees should provide documentation to support their FFCRA leave to their employers as soon as practicable; and
• clarifies that employers can require employees to provide notice for EPSL only after the first day of leave taken and notice for EFMLA as soon as practicable.

As if the FFCRA and its related, ever-changing guidance were not difficult enough for employers and employees to digest and follow, several state and local jurisdictions have their own coronavirus-leave-related laws that covered employers must also follow. For example, numerous counties and cities in California have passed ordinances requiring employers with 500 or more employees to provide up to 80 hours of paid sick leave, thus ensuring that nearly all employers (even those not covered by the FFCRA) provide some form of paid leave for COVID-19-related reasons. By way of further example, on September 11, 2020, Oregon’s Bureau of Labor and Industries issued a permanent rule allowing employees to take paid sick leave under the Oregon Family Leave Act (OFLA) if their child's school or child care provider has been closed due to a statewide public health emergency. These are but a few of the jurisdictional-specific laws that may compliment, supplant, or interact with the requirements of the FFCRA.

Considering the FFCRA, the numerous state and local jurisdictions with their own leave laws, and the pace at which those laws are developing, employers should continue to monitor all leave laws that apply to them and consult with legal counsel to ensure compliance with those laws.