Does an employee, who has opted to stay home with her school aged child, who chose to virtually learn, when the school is open, and the other 2 children are in school, still qualify for extended leave under the Emergency Families First Coronavirus Response Act?
The Department of Labor recently addressed this very issue in an update of its Frequently Asked Questions (FAQ) online resource. Prior to this time there had been no direct guidance and employers were left with ambiguity. It is now quite clear, as follows:
“FAQ 99: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?” (added 08/27/2020)
No, you are not eligible to take paid leave under the FFCRA because your child’s school is not 'closed' due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.
Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively 'closed' to your child on those days." Please see Families First Coronavirus Response Act: Questions and Answers for the full FAQ resource, which contains the FAQs referenced above.
Unless one of the stated exceptions exists as referenced above, an employee who elects a remote learning option for his/her child(ren) when the school is otherwise open is not eligible for the statutory protection under the federal Families First Coronavirus Response Act (FFCRA). Time off requests associated with this type of childcare can and should be addressed in a manner consistent with employer policy and past practice, barring any contractual provisions that otherwise govern the issue. Additional guidance on the FFCRA can be found on our website or at COVID-19 and the American Workplace which also includes a link to the requisite poster. Please note that this law is scheduled to sunset on 12/31/2020.