Department of Labor Releases Updated FAQs Covering Working Parents

September 8, 2020

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Overview

As parents and children prepare to return to school, whether remote or in-person, the Department of Labor (DOL) recently released newly added FAQs regarding employees' right to paid sick leave under the Families First Coronavirus Response Act (FFCRA) in the event employees have minor children whose school or place of child care is closed due to the pandemic.

The FFCRA provides paid leave for parents (or guardians) if their child's school or place of child care is closed due to the pandemic. If the child's school offers online instruction only, the parent (or guardian) is entitled to paid FFCRA leave to care for their child when the child's school is closed or for "remote" learning days in the event the school is using a combination of in-person and on-line instruction, i.e. "hybrid instruction."

However, in the event of school closure, only one parent (or guardian) is entitled to paid leave at a time. In addition, if the parent (or guardian) choses remote-only instruction for their child, when the school offers in-person instruction, the parent (or guardian) is not entitled to paid leave because the school is not "closed". However, the parent (or guardian) is still entitled to paid leave for any days when the child's school offers only remote instruction, i.e., days when the school is "closed", and this is true even if the school offers in-person instruction at other times.

The DOL's updated FAQs also specify that employers may require employees to provide a written request outlining the circumstances to verify the employee's need for FFCRA leave due to pandemic-related school closure. According to the DOL, absent fraud, employers should not deny an employee's otherwise legitimate request for leave to care for their child at times when the child's school is "closed" due to the pandemic.

The applicable legal rules vary depending on the child's school's manner of day-to-day instruction, and whether the school is "closed" to in-person instruction. For assistance determining how this DOL guidance impacts your organization, please contact a member of our Labor & Employment or Education Law practice group.

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