On August 27, 2020, the U.S. Department of Labor (DOL) updated its “Families First Coronavirus Response Act: Questions and Answers” page to include three new FAQs tackling the difficult and evolving leave issues associated with children returning to school on a remote basis. As employers and employees have come to learn, the FFCRA provides employees with paid leave if an employee needs to care for a child whose school or place of care is closed due to precautions implemented in response to the COVID-19 pandemic. In the abstract, the determination of whether a school is “closed” for purposes of the FFCRA is relatively simple. However, the adoption of “hybrid” or “alternate day” schooling has thrown some employers for a loop in determining whether an employee actually qualifies for FFCRA and how to calculate leave, if eligible.

In the new FAQs, the DOL discusses learning arrangements in which a school offers in-person instruction on certain days and remote learning on other days. According to the DOL, FFCRA leave is available in this circumstance, but only on remote-learning days.  The FAQS also address situations in which schools provide parents the option of either letting their child attend in-person instruction or participate remotely. When parents choose the remote option, the DOL has opined that FFCRA leave is not available because the school is actually “open” for the child to attend.  Lastly, the DOL has stated that if a school offers only remote learning when the school year starts, FFCRA leave is available, but if the school later transitions to in-person instruction exclusively, leave will not be available upon that transition.

These new FAQs provide clarification for employers regarding how the FFCRA operates as they grapple with this new frontier.