Just in time for back-to-school, the U.S. Department of Labor (DOL) published responses to three new frequently asked questions regarding paid leave under the Families First Coronavirus Response Act (FFCRA) for the reopening of schools.  (Note: The DOL has not yet addressed the New York federal judge's ruling earlier this month which invalidated several provisions of the FFCRA, which we blogged about here.)  The DOL also issued a letter providing guidance to states on Pandemic Unemployment Assistance (PUA) benefits available for parents unable to work due to remote learning. 

The three new FAQs are below:

Is the employee eligible if the child's school operates on an alternate day basis?

Yes - If a school is operating on an alternate day basis where students are only permitted to attend school on their allotted in-person days and participate in remote learning on the other days, the employee is eligible for paid leave under the FFCRA. They are eligible on the days when the child is not permitted to attend school in person, as long as they need leave to actually care for the child and only if no other suitable person is available to do so. For purposes of the FFCRA, school is essentially "closed" for the child on the days when he or she cannot attend in person.

Is the employee eligible if they choose to enroll their child in remote learning when in-person instruction is available?

No - If the school is providing families with a choice between a remote learning program and in-person instruction, then the employee will not be eligible for leave under the FFCRA, even if the choice is because of COVID-19 concerns. In this situation, the school is not "closed" due to COVID-19 related reasons and is open for the child to attend.  However, other federal or state leave statutes may apply.  Further, if the employee's child is under a quarantine order or has been advised by a healthcare official to self-isolate or self-quarantine, then the employee may be eligible for paid leave under the FFCRA to care for him or her. 

Is the employee eligible if the school year begins with remote learning but shifts to in-person instruction?

Yes - If the school is "closed" (operating under a remote learning program), then the employee is eligible to take paid leave. The employee will remain eligible so long as the school remains "closed." If the school reopens then the eligibility under the FFCRA will depend on the particulars of the school's operation as discussed above.

As for PUA benefits, the DOL clarified that if an individual is not receiving paid leave benefits under the FFCRA and is unable to work because of online only school or online hybrid school, the individual is eligible for pandemic unemployment assistance.  If receiving paid leave for part of the week or working part-time hours, the individual is required to report those earnings. Finally, if school gives the option of online only school or attendance in-person, the individual is not eligible for pandemic unemployment assistance if they choose remote learning instead of in-person instruction, unless they meet the requirements under another listed COVID-19 related reason.

Still have questions about paid leave or unemployment benefits for employees as we head back-to-school?  Don't worry - we are here to help!

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