Schools are back in session but my employee needs time off?

What do I do?

What am I required to do?

These and more are many of the questions employers are asking themselves these days. School is back in session but that does not mean that they are entirely open. Many schools have started the school year with remote learning, whether it’s mandated by the state, or a decision made by the school itself. Parents have suddenly found themselves playing the role of teacher at home and if they also have a job, it can be difficult to do both.

This is where the Families First Coronavirus Response Act (FFCRA) comes in. Passed by Congress in March, the FFCRA requires not only paid sick leave for those who might have come down with the virus, but also expanded the Family Medical Leave Act (FMLA) to include required job-protected paid time off for parents who have children whose schools are closed due to the virus. You can find our FAQ on the FFCRA here, while below you can find answers to some of the common questions employers are asking about how to provide this new leave.

Q: If a parent’s school is open, but they choose to do at-home learning instead, can we deny his/her leave?
A: We don’t know yet. EFMLA can be used when a child’s school or place of care is “closed,” such that the child cannot be there in person. This might suggest that if the option is available to attend in-person, that those choosing online school would not be eligible for leave. We are hoping for a definitive answer from the Department of Labor on this soon.
Keep in mind that if a parent must choose at-home learning because their child’s doctor has advised they should not attend school in-person due to a medical condition, leave would apply.

Q. If kids are going to school in-person two days a week and doing school from home three days a week, do we have to give a parent intermittent leave three days a week?
A. We recommend providing intermittent leave. Keep in mind that not all employees will want or need a full day off just because a child is doing school from home — many may be able to perform some work intermittently during the day or after the schoolwork is complete for the day. Being open to these kinds of requests and remote work (if possible) should help you maximize productivity.

Q. Can we set up a way for parents to tutor children at our workplace?
A. You’ll first want to consult with an attorney or someone else that is familiar with the kind of licensing and insurance that would be required to do this. You will want to make sure your general liability insurance would cover a visiting child. Additionally, you should consider the amount of time a parent may need to tutor their children. Typically, older children are more self-sufficient as they’re able to read and navigate the assignments themselves, however, younger children may require more attention from your employee who in turn will not be able to perform work. This could quickly create a problems in deciphering what time is paid for performing work vs. unpaid time for being at work but tutoring his/her child(ren).

Q. Can I deny leave to an employee who has children who should be able to take care of themselves during the day?
A. No. However, if the child(ren) are 15 or older, StaffScapes requires that the employee provide a statement/affirmation that there are special circumstances that cause the older child to need their care. Typically, the reasons are due to a disability or other health condition, but employers are not allowed to ask for details or medical information. You can also remind all employees that it is fraudulent to take EFMLA leave if a person is able to work because their child is old enough to not need their care.

Q. Can we require proof that the school or place of care is closed?
A. No. However, StaffScapes requires a statement from the employee listing the names and ages of the child(ren) being cared for and the name of the school, place of care, or caregiver that is closed or unavailable due to COVID-19. This statement also attests that the employee is unable to work because they must provide care for their child(ren).

Q. Can I ask an employee to look for different childcare or school if their usual provider is unavailable?
A. No. An employee is entitled to leave if the child’s usual care provider is unavailable due to COVID-19 — they are under no obligation to look for alternatives. Any attempt on an employer’s part to require they find alternate care would be illegal interference with their right to take EFMLA.

Q. Can I deny leave if I think or know an employee is lying about the need to care for a child?
A. There is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. If any of our clients find themselves in this situation, contact StaffScapes to discuss.

Q. What if an employee won’t fill out the FFCRA documentation?
A. An employer can require the notice after the first day of leave. If the employee still fails or refuses to complete the documentation after a reasonable amount of time, FFCRA leave can be denied.

Q. Can we terminate an employee who is unable to work because they need to care for a child – but have already used up their leave under the FFCRA?
A. Termination is an option, but you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. If you do decide to terminate an employee who has run out of leave, make sure you are consistent in this with other employees in the same situation. If you are flexible with some employees while firing others, you will open yourself up to claims of discrimination.

Q. What if we find out an employee’s leave was fraudulent after the fact?
A. There is not clear guidance on how to respond to this situation at this time.

Information contributed and provided by ThinkHR.