legallines Keeping Up With COVID More Legal Guidance Presented
| By Robin Sheridan
A
s you may recall from the column in the 4th quarter 2020 Journal of Employee Assistance, the Families First Coronavirus Response Act (FFCRA) has two parts that can impact EA professionals: the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). In our last issue, we addressed the impact of local/ state COVID-related ordinances, EEOC guidance, and the EFMLEA. Since that time, the US Department of Labor has issued additional FAQs and new regulations for compliance with the FFCRA. Accordingly, while our intent was to address EPSLA and COVID guidance from OSHA in this issue, we have focused instead on the new legal guidance.
participate in remote learning, the newly added FAQs state that parent 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. However, eligibility is limited to times during which the employee needs the leave to actually care for their child and only then if no other suitable person is available. For purposes of the FFCRA, the school is effectively “closed” to the employee’s child on days that he or she cannot attend in person. Therefore, the employee may take paid leave under the FFCRA on each of the child’s remote-learning days (but not for the days in which the child is or could be attending school in-person). That said, if the school is giving parents a choice between having their child attend in-person or participate in a remote learning program, and the parent employee chooses the remote learning option, they are not entitled to take FFCRA paid leave. The DOL explains this is because the school is effectively not “closed” to the child due to COVID-19 related reasons. Of course, if, because of COVID-19, the employee’s child has been advised by a health care provider to quarantine or ordered to quarantine by a government entity, and the employee is needed to care for the child, the employee may be eligible to take EPSLA leave to care for the child even if the school is open.
New DOL FAQs Address Leave Due to School Closures Among other things, the EPSLA and EFMLEA provide a leave of absence when an employee is unable to work or telework because they are needed to care for one (or more) children when the child’s school is closed due to COVID-19 related reasons. The leave is only available to care for a nondisabled child if he or she is under the age of 18 or for a child 18 years of age or older with a disability who cannot care for him or herself due to the disability. If the child is over the age of 14 and the private-sector employer intends to claim tax credits for the leave payments, the employee may be required to provide a statement explaining what special circumstances exist that necessitate leave during daylight hours. Accordingly, when the child’s school has implemented a fully remote learning program, employees are generally eligible to take paid leave under the FFCRA while their child’s school remains closed. Similarly, when students alternate between days in which they attend school in-person and days they
New Regulations for FFCRA Given the critical need for patient care during the pandemic, and the fear that healthcare staffing shortages would undermine the country’s fight against COVID-19, the FFCRA provides that “health care providers” (and emergency responders) may be denied leave under the EFMLEA and the EPSLA. Therefore, even if the school of a physician’s child is 8
| JOURNAL OF EMPLOYEE ASSISTANCE | 1st Quarter 2021 | •• • • • • • • • • • • • • • • • • • • • | W W W . E A PA S S N . O R G |