COVID-19

IL COVID – 19 Update #115

By August 12, 2020 August 17th, 2020 No Comments

Dear Members–

With the school year upon us we have fielded many questions from employers about whether or not a business has to provide Emergency Paid Sick Leave (EPSL) or Expanded Family Medical Leave (EFMLA) to an employee if the employee’s child is participating in remote learning. The U.S. Department of Labor (DOL) has issued some guidance regarding the issues. This guidance is outlined below. 

Please note that the DOL is in the process of providing expanded guidance and IRMA will provide a summary of that guidance when it is released.

What type of Leave is Available under Families First Coronavirus Response Act?

  1. Emergency Family and Medical Leave Expansion Act (EFMLA)

Employer Threshold: Employers with fewer than 500 employees.

Covered Employee: An employee who has been employed for at least 30 days by the employer is eligible for the new leave entitlement.

FMLA Paid Leave Mandate: Requires all employers to provide employees paid leave because of a “qualifying need related to a public health emergency”.

The first 10 days for which an employee takes the “emergency” FMLA leave may consist of unpaid leave. However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave provided by the employer in lieu of this unpaid leave, including utilizing the two weeks of mandated Emergency Paid Sick Leave outlined below. The remainder of emergency FMLA leave taken by an employee must be paid leave provided by the employer. Therefore, a covered employer must provide at least 10 weeks of qualifying paid emergency FMLA leave to a covered employee.

Qualifying Need Related to Public Health Emergency: An employee may only take the “emergency” FMLA leave if the employee is unable to work (or telework) due to a need to care for the employee’s child if the child’s school or place of care has been closed due to a public health emergency.


2. Emergency Paid Sick Leave Act

Employer Threshold: Employers with fewer than 500 employees.

Covered Employee: All employees because of a qualifying need related to a coronavirus public health emergency.

Emergency Paid Sick Leave Requirement: The employer shall immediately provide each employee two weeks of paid sick leave to the extent that the employee is unable to work (or telework) because of the following reasons related to COVID-19:

  • The employee is subject to a federal, state, or local quarantine or isolation order;
  • The employee has been advised by a health care provider to self-quarantine;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual to which points 1 or 2 apply;
  • The employee is caring for a child if the child’s school or place of care has been closed due to COVID-19 precautions; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Labor and the Treasury.

Remote Learning

Various school districts are taking different approaches with regard to how schools will reopen in the fall. These plans can generally be organized into the following categories: 

  1. Full-time remote learning;
  2. In-person learning with an option for remote learning; and 
  3. Hybrid learning scenarios with a combination of remote learning and in-person instruction.

Can an employee take FFCRA leave if their child’s school is closed?

Yes. An employee is eligible for leave leave if the employee is unable to work (or telework) due to a need to care for the employee’s child if the child’s school has been closed due to a public health emergency.

Can an employee take FFCRA leave if their child’s school is open, but the employee opts out of in-person learning and selects remote learning instead?

Generally, no. In order to be eligible for FFCRA leave, the physical location where the child receives instruction or care must be closed. If, however, the school is operating at reduced capacity to comply with social distancing guidelines, such that the employee’s child has no choice but to receive remote learning, FFCRA may be available. 

When issuing its guidance regarding the closure of summer programs and camps, the DOL opined that summer camps may be “closed” for FFCRA leave eligibility purposes if they were “partially closed” for reasons related to COVID-19 because they had to operate at reduced capacity. 

The same analysis would seem to be applicable to schools reopening in the fall. DOL is in the process of issuing further guidance.

Is an employee eligible for FFCRA leave if the school operates under a hybrid system where in-person learning is restricted to certain days of the week (e.g., M-W-F) and is supplemented with remote learning (e.g., T-Th)?

It depends. As noted above, if a school is partially closed due to COVID-19, FFCRA leave likely will be available. Moreover, as the DOL has noted, school is “closed” even if remote learning is provided. Accordingly, if the employee is not able to work or telework on days when school is closed, FFCRA leave may apply. Similarly, if a school partially closes by temporarily requiring remote instruction for certain classrooms where there has been possible exposure to COVID-19, FFCRA likely will apply if the employee’s child can no longer attend in-person instruction. DOL is in the process of issuing further guidance.