As we have previously reported, the Families First Coronavirus Response Act (FFCRA), which remains in effect through December 31, 2020, provides, among other things, that eligible employees can take up to 12 weeks of FMLA leave if the employee is unable to work (or telework) due to a need for leave to care for their son or daughter if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to a public health emergency with respect to COVID-19 declared by a Federal, State, or local authorities. The United States Department of Labor (DOL) has been issuing guidance with respect to various provisions of the FFCRA and, as the schools across the country are getting ready to start or have already started the new school year, on August 27, 2020, issued three new Questions and Answers on the intersection of return-to-school and the FFCRA. The new guidance is straightforward:

1. If the school’s operations are 100% virtual, the FFCRA is available for eligible employees.
2. If the school’s operations are hybrid (i.e., students attend the school in person on alternate days), the FFCRA is available for eligible employees on days when their child is not permitted to attend school in person and must instead engage in remote learning so long as the employees need the leave to actually care for their child during that time and only if no other suitable person is available to do so.
3. If the school offers both in person and virtual option and the employee chooses a virtual route, the FFCRA is not available, unless other provisions of the FFCRA apply such as, for example, if because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid emergency sick leave under the FFCRA to care for the child.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.