The Mailbag: COVID & School.

• Author: Davenport, Anniken

In her recent HR Specialist webinar on employee leave, attorney Anniken Davenport fielded questions regarding the impact of the Families First Coronavirus Response Act on employees with school-age children. While the FFCRA is set to expire on Dec. 31, it may be extended into 2021.

When can employees take FFCRA leave if their children have a hybrid school schedule?

Q A employee has a child at a school that's operating on a hybrid basis (alternating in-school and remote-learning days). Students are permitted to attend school only on their allotted in-person attendance days. Can she take paid leave under the Families First Coronavirus Response Act in these circumstances?

1. Yes, the employee is eligible to take paid leave under the FFCRA on days when her child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for her child during that time, and only if no other suitable person is available to do so.

   For purposes of the FFCRA and its regulations, the school is effectively "closed" to their child on days that he or she cannot attend in person. The employee may take paid leave under the FFCRA on each of their child's remote-learning days.

   Employee is working from home: Must we offer leave if child's school closes for COVID reasons?

   Q If we provide a telework option for our employees, are we required to approve a request for FMLA/EPSLA leave due to the employee's child being home-schooled or sent home due to the school being shut down?

1. The answer is complicated. The U.S. Department of

   Labor seems to imply in its response to a similar question that the answer is "It depends." According to the DOL:

   "If you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available." The question then becomes, is the employee able to do both--telework and care for the children? The DOL contemplates several different scenarios, including one in which the employer and employee agree to intermittent leave so that the employee could "telework from 1:00 PM to 2:30 PM, take leave from 2:30...