As employers navigate different scenarios and new situations related to COVID-19, questions continue to arise regarding what is covered under the Families First Coronavirus Response Act (FFCRA). The following questions have been posed to MRA’s HR Hotline Advisors for advice on how to determine whether various circumstances qualify for benefits under the Emergency Paid Sick Leave (EPSL) and the Emergency Family Medical Leave Act (EFMLA).
Question: What is the Department of Labor position on spouses working from the same employer, taking EFMLA? For example, one spouse exhausted 12 weeks of EFMLA earlier this year in spring/summer. Is the other spouse eligible for 12 weeks of EFMLA now that the kids are returning to school with virtual/remote school?
Answer: While traditional federal FMLA requires spouses employed by the same employer to "share" their 12 weeks of FMLA for leave taken to bond with a child, this provision does not apply to EFMLA. Both employees would be eligible to each take 12 weeks of EFMLA due to school closure/virtual learning. However, parents cannot take EFMLA simultaneously, as leave can only be taken when no other suitable person is available to care for the child.
Question: FFCRA rules indicate an employer has the option of agreeing to EFMLA intermittent leave. An employee is requesting intermittent EFMLA because the child’s school has some days remote and some days in-person. If an employer finds this schedule challenging to accommodate and disruptive to work, can intermittent leave be denied?
Answer: In light of the New York Federal Court’s decision, the Department of Labor (DOL) clarified its guidance around intermittent EFMLA as of September 16, 2020. Essentially, the DOL confirmed that intermittent leave can only be taken with employer approval. However, the DOL also clarified its position on hybrid school models with alternating in-person and remote schedules, such as the one described in this scenario. Here, each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” As a result, intermittent leave is not necessary on these occasions because the “school literally closes . . . and opens repeatedly.” Thus, refusing an intermittent leave request in this situation may be interpreted as interfering with your employees’ rights under the FFCRA and is not advised. Instead, an eligible employee in this scenario may take continuous EFMLA leave which does not require employer approval.
Question: Is an employee eligible to take FFCRA leave intermittently to tend to "school activities?" For example, an employee requested time off to attend a school conference, school meeting, and then also to go to school to pick up a chrome book to support virtual learning?
Answer: No. FFCRA does not cover time away for these types of events. Other state laws may apply, however, such as Minnesota's School Conference and Activities Leave Law and the Illinois School Visitation Rights Act. Employers are encouraged to be flexible with employees when their presence at school is needed for such activities.
Question: An employees' adult child is attending college out of state, and tests positive for COVID-19. The college is requiring the student to return home. If the employee needs time off to travel to pick up their adult child (i.e. child cannot fly or take public transportation), and then time off to quarantine, is this time covered by EPSL?
Answer: Yes. An employee is eligible for up to 80 hours EPSL to care for an individual who has been advised by a health care provider to self-quarantine related to COVID-19. While the DOL has not addressed this exact situation, one could argue the travel time could be covered by EPSL since it would be required to care for the individual in this scenario. Employers should use their best judgment when assessing whether travel time should be covered by EPSL leave in this situation.
Question: The school where my employees’ children attend is open for in-person learning. A student has tested positive for COVID-19, and as a result, all students who had close contact with this student are required by the school district to convert to remote/virtual learning for at least 2 weeks. Are parents able to take leave under EFMLA in this situation?
Answer: Yes. While the DOL has not addressed this exact scenario, it has advised that employees are eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in person and must instead engage in remote learning, as long as there is no other suitable person available to care for the child during that time. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to that child on days that he or she cannot attend in person.
Question: Some employees’ work schedules include working weekends. Can we require employees to find back-up childcare arrangements on Saturday/Sunday if their regular childcare provider is unavailable for reasons related to COVID, so that they don’t have to take FFCRA leave?
Answer: Employees are eligible to take EPSL/EFMLA when a childcare provider is closed or unavailable due to COVID-19. A “childcare provider” is someone who cares for the child and can include individuals paid to provide childcare, such as nannies, au pairs, and babysitters. It also includes individuals who provide childcare at no cost and without a license on a regular basis, such as grandparents, aunts, uncles, or neighbors.
Requiring your employee to seek alternative childcare arrangements may be interpreted as interfering with your employees’ rights under the FFCRA and is not advised.
Question: Our employee was scheduled to work mandatory overtime on the weekend. He already worked and was paid for 40 hours that week. He was unable to work the mandatory overtime as his childcare provider was not available to watch his children for reasons related to COVID. Is this covered by EFMLA at 2/3 pay, even though the employee was paid for a 40-hour workweek?
Answer: Yes. The Emergency Family and Medical Leave Expansion Act (EFMLA) requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.
However, the Emergency Paid Sick Leave Act (EPSL) requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.
OUTBREAK AT WORKSITE
Question: An outbreak occurred at our facility and the local department of health required our company to shut-down for a short period (i.e. 48 hours) for ventilation, cleaning and mass testing, is this time off covered by EPSL?
Answer: Maybe. If an employee is showing symptoms and awaiting test results due to exposure, or has been advised by a healthcare provider to quarantine, he or she may be eligible for benefits under the EPSL. During the company closure, other employees may be eligible for unemployment benefits under the CARES Act, or other paid time off benefits provided by the employer.