Over the last couple months, many employers rushed to understand and implement the complexities of the Families First Coronavirus Response Act (FFCRA) paid leaves. Just when things seem somewhat under control, now comes the end of the school year, throwing yet another wrench into the works. Does an employee’s right to expanded family medical leave (EFMLA) to care for their child due to school or childcare closing or unavailability end once the official school season ends?
Not necessarily. The Department of Labor (DOL) published FFCRA questions and answers that provide some guidance in Question #93.
Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or childcare provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19-related reason.
The key becomes the availability of their summer program or childcare provider. In many instances, the summer provider may be a family member or friend who indicates an unwillingness to watch the children in order to limit their own exposure to the virus. Question 68 is clear that “childcare provider” can include professional providers, as well as “individuals who provide childcare at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors.” In that case, if the regular childcare provider is unavailable, for whatever reason, then the employee’s EFMLA rights continue into the summer.
So where does that leave employers? Can employees be forced to find alternative arrangements for the summer? What kind of proof can be required? Keep in mind that the EFMLA is an expansion of traditional FMLA, and as such, employers are prohibited from discriminating or retaliating against an employee for exercising their rights. Using “force” by threatening an adverse employment action will quickly run afoul of the law. This could include insisting on more documentation to support their EFMLA than the law requires, as incorporated in our Employee Statement for Emergency Family and Medical Leave (EFMLA) Request. That said, if you later discover the information they provided was false, employers are allowed to deal with that as a disciplinary matter.
An employer’s best course of action is to follow the DOL’s guidance and have an interactive conversation with the employee. What alternatives have been considered? Would flexibility in work hours allow the employee to work when the other parent is available to care for the children? Employers who are also covered under traditional FMLA should remind employees that EFMLA runs concurrently with traditional FMLA entitlement. Ensuring they are aware of this can encourage them to choose their leave wisely to ensure they use it when they really need it. Also, keep in mind that EFMLA rights remain in place until December 31, 2020, so whatever they don’t use now will be available for use later in the year.
Finally, what does an employer do with an employee who has exhausted his or her 12 weeks of EFMLA and refuses to come to work to stay home with the kids? Employers should consider any remaining leave of absences they may qualify for under federal, state, or local law, as well as under company policy and apply it in a nondiscriminatory manner. If no other leave of absence is available, then employers can follow their normal disciplinary and/or termination process for anyone who refuses to work.
Due to the extraordinary circumstances of the pandemic, employers may want to consider implementing a temporary policy to extend some leeway to employees in this situation. Doing so can retain good employees and doesn’t need to handcuff an employer to the policy forever. Be mindful of what arrangement can be accommodated and clarify the parameters in writing. Apply the policy consistently and fairly. Ensure employees understand that the policy is temporary in nature and not intended to permanently alter company policy or the terms and conditions of their employment. Designate an end date to the policy and then follow-up and communicate the decision on whether to extend, modify, or rescind the temporary arrangement. Remember that silence risks inadvertently extending the policy by default.
Navigating FFCRA compliance and EFMLA issues can be tricky. Clear and open communication is always your best bet. If you have further questions or want to talk it over, contact MRA’s HR Advisors at 866-HR-HOTLINE (866-474-6854) or firstname.lastname@example.org.