This fall’s return to school will be a challenge for students, parents, and employers alike. Most states are dealing with a wide array of approaches to begin the school year. The approaches can generally be categorized in four broad categories:

In-Person: All staff and students are learning onsite.
Hybrid/Blending Learning: To reduce the density in school buildings, students attend school onsite some of time and would be remote learning for the rest of the time.
Only Remote: No students in school buildings and remote learning for all.
Families opting out of school in an abundance of caution and deciding to homeschool.

Like everything related to COVID-19, school re-opening plans are fluid. Some school districts planned in-person or hybrid returns this fall, but quickly shifted to only remote learning. Others will likely transition to only remote as the virus continues to spike. The constant flux has encouraged a sizable population of parents to opt-out of the system and homeschool their children in micro-schools or pandemic pods. Pods are small groups of children working with an in-person tutor.

Schools constantly shifting plans should stir employers to understand their obligations under federal and state leave laws. To assist employers in understating their obligations under the Families First Coronavirus Response Act (“FFCRA”), the Department of Labor (“DOL”) offered guidance on leave and the various approaches to schooling last week, which is summarized below:

In-Person: If a child’s school is not closed due to COVID-19 related reasons, it is open for children to attend and FFCRA leave is not available.
Hybrid/Blending Learning: FFCRA leave is available on days or parts of days when a child is not permitted to attend school in person and must instead engage in remote learning. The DOL clarified that FFRCA leave is only available if the employee is actually caring for their child during that time and only if no other suitable person is to do so.
Only Remote: FFCRA leave is available while a child’s school remains closed.
Families opting out of school or choosing to participate in the remote learning program: FFCRA is not available because a child’s school is not closed and FFCRA is not available to take care of a child whose school is open for in-person attendance. However, if because of COVID-19, a child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, FFCRA leave is likely available.

Understanding state or local laws requires understanding all the applicable leave laws where your company is located. Currently, the following jurisdictions have enacted paid sick leave laws:

Arizona (statewide only)
California (statewide and local, including Emergency COVID-19 Leave)
Colorado (statewide only, including Emergency COVID-19 Leave)
Connecticut (statewide only)
District of Columbia, (including Emergency COVID-19 Leave)
Georgia (statewide only – limited application)
Illinois (statewide and local)
Louisiana (local only—limited application)
Maine (statewide only)
Maryland (statewide and local)
Massachusetts (statewide only)
Michigan (statewide)
Minnesota (local only)
Nevada (statewide only)
New Jersey (Statewide only; local preempted)
New Mexico (local only)
New York (statewide and local, including Emergency COVID-19 Leave)
Oregon (statewide only; local preempted)
Pennsylvania (local only)
Puerto Rico
Rhode Island (statewide only)
Texas (local only)
Vermont (statewide only)
Washington (statewide and local, including Emergency COVID-19 Leave)

Please reach out to one of our Labor & Employment attorneys for specific guidance.

Otherwise, generally ask the following questions if an employee is seeking leave to care for children who would be in school if not for COVID-19:

Does FFCRA apply?
Does a state or local Emergency COVID-19 leave law apply in our jurisdiction (California, Colorado, District of Colombia, New York, or Washington)?
Does a paid sick leave law apply in our jurisdiction?
Does a company benefit or policy apply?

This analysis will answer what employers are entitled to do. However, if remote learning persists throughout the entire school year, employers may consider the following ideas to ease the burden on working parents and create a more reliable workforce for businesses:

Partial remote workweek: To the extent your local schools opt for the hybrid model, a business could set up a schedule with the employees to be in the office on days the children are in school and to work from home the days the children are remote learning. It’s still best practice to allow employees to work remotely 100% of the time if their role can be accomplished remotely.
Compressed workweek: To the extent a business needs employees physically in the office for their work, the business could offer compressed workweeks to allow the employees to have a day or two off to attend to their children. For example, a business could schedule employees to work four 10-hour days or three 12-hour days, to allow employees to be home during school hours on some days.
Reduced schedules: If there are certain positions that can be split between two employees, an employer could consider allowing employees to “job share” by essentially reducing employee hours and coordinating shifts to allow them to have time to help at home.
Onsite child care / bring children to work: A business could consider working with a community partner to provide childcare services in its facilities. If this is not feasible, a business could also consider allowing employees to bring their children to work and setting up space for their remote schooling. Without a daycare or “tutor” service, however, this may be difficult logistically for the workers and the business. Employers should analyze other liability and risk if it goes in this direction. Relatedly, a business could consider allowing employees to use company message boards to connect with coworkers who can help with childcare through babysitter sharing or by forming remote school pods.
Paid or Unpaid Leave: An employer could consider offering some form of paid or unpaid leave to employees who otherwise cannot perform their work remotely, but must care for their children. Remember to first check federal, state and local law, as well as company policy, to see what other leave employees are entitled to before offering additional leave.

As always, keep an open line of communication with the employees and offer flexibility, where feasible. Please reach out to one of our Labor & Employment attorneys for specific guidance.

Back to School and the FFCRA: A Study Guide