Just the FAQs (Frequently Asked Questions)
Back to School and “Paid Child Care Leave” Under FFCRA
With the new school year shortly underway in New Jersey and many other states, many of our clients have asked questions about the conditions under which employees can take paid child care leave under the Families First Coronavirus Relief Act (FFCRA), which is the federal amendment to the Family Medical Leave Act that came into effect earlier this year with the onset of COVID-19, and applies to all businesses with under 500 employees. This paid leave is in addition to any paid sick time available under New Jersey or other state laws that contain child care leave provisions for school closures.
OlenderFeldman LLP has prepared this FAQ to separate fact from fiction concerning employee leave rights for child care following the return of children to school this Fall.
Q.What is the “paid child care leave” requirement under FFCRA?
A. “Paid child care leave” is the shorthand reference to one category of paid emergency family leave under FFCRA and requires employers to provide eligible full-time employees with up to twelve (12) weeks of paid sick and medical protected leave if the employees are unable to work due to a bona fide need to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19. Part-time employees are eligible for leave for hours that they are normally scheduled to work over that period.
Q. Do employers have to provide leave to every employee with child care issues while schools are closed?
A. No. If the employee has not been employed for at least 30 days and is capable of working from home while caring for a child whose school is closed, the employer does not have to provide leave. Employers can request employees to provide documentation explaining why they cannot work from home while taking care of a child. There is also a hardship exception for employers with under 50 employees as discussed below.
Q. Do employers need to provide employees with their job back after leave?
A. Yes, but employees on leave are not guaranteed the actual job held prior to the leave. Employees must be restored to the same job or to an “equivalent job” that is virtually identical to that position with the same salary and benefits.
Q. Do employers need to pay full salary to employees out on “child care leave”?
A. No. Employees out on FFCRA child care leave only receive two-thirds (2/3) of their daily salary up to $200 per day and up to $12,000 in the aggregate. Employers may also recover the amount of wages paid under FFCRA on a dollar-for-dollar basis through tax credits and should consult with their accountants and payroll providers to account for these reimbursable wages.
Q. Do employees who have already taken FFCRA leave for their own personal medical condition also get child care leave?
A. Yes, but only to the extent that they have not used up their maximum leave period of twelve weeks. For example, if an employee has already used ten (10) weeks of FFCRA leave recovering from COVID-19 this year, they can only take two (2) weeks of child care leave.
Q. Is a school considered “closed” if providing online classes?
A. Yes, but there are exceptions and the situation remains quite fluid because many states (including New Jersey) are allowing schools to create their own programs that include one of the following plans: entirely remote, hybrid attendance, or optional attendance. In its most recent guidance (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#98) the United States Department of Labor has issued guidance for each of these three types of learning programs:
Entirely Remote. If a school has moved entirely to online classes, the DOL considers the school to be “closed” for purposes of FFCRA leave and the employee is eligible to obtain leave.
Hybrid Attendance. If the school is operating on an alternate day or hybrid attendance policy (certain days in person and other days remote), the employee can take FFCRA leave only during remote-learning days. Thus, the employee would not be eligible to take FFCRA leave on the days the school is open for in-person learning.
Optional Attendance. If the school provides a choice between in person attendance or remote learning, an employee will not be eligible for FFCRA leave if they choose to keep their child home regardless of the reason for that decision.
Q.Can the employer refuse FFCRA child care leave?
A. Yes, but there are very specific requirements for doing so. A business with less than 50 employees can refuse FFCRA child care leave when doing so would jeopardize the viability of the business as a going concern and an authorized officer of the business has determined that:
(1) providing leave would result in the expenses and financial obligations exceeding available business revenues and cause the business to cease operating at minimal capacity; OR
(2) the absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operation of the business because of their specialized skills, knowledge, or responsibilities; OR
(3) there are insufficient workers able, willing, qualified, and available to perform the labor or services provided by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
Q. What is the best practical advice to business owners to address employee requests for paid child care leave under FFCRA?
A. Employers need to create an FFCRA Child Care Leave Request Form so that they can evaluate and track the specific requests of their employees in a manner similar to leave requests under the FMLA. These leave request forms are available from OlenderFeldman. Employers also need to consult with an attorney for any specific issues associated with leave requests if the entitlement of an employee to leave is in question or if the employer intends to deny leave based on business hardship.
Further information or guidance concerning FFCRA leave can be obtained from OlenderFeldman LLP. Please contact Howard Matalon () or Alex Umansky () in the Employment Practices and Employment Litigation group.