A Potential Solution for Working Parents with Children in Remote School

Families First Coronavirus Response Act (FFCRA)

In light of the COVID-19 pandemic, the Families First Coronavirus Response Act (“FFCRA”) has been enacted to temporarily extend the Family and Medical Leave Act (“FMLA”) in order to support families due to sudden school and childcare changes.  Although many parents were able to manage working while taking care of their children at home for the last few months of the spring 2020 semester, they did not expect that remote learning would continue into the fall 2020 semester.  For working parents who are wondering how to deal with this challenge, the FFCRA may be the answer.

The FMLA provides up to twelve weeks of unpaid leave for an eligible employee who must take time off due to a serious health condition, to care for an immediate family member (spouse, child, or parent) with a serious health condition, or to care for a newborn child.  Since these provisions of the FMLA are still applicable to covered employers, an eligible employee may request unpaid leave under the FMLA due to the COVID-19 illness if serious complications arise for the employee or an immediate family member of the employee.

Now under the FFCRA, which includes the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), eligible employees may receive up to twelve weeks of paid leave if their child’s school or place of care is closed or their childcare provider is unavailable, due to COVID-19 related reasons.  First, an eligible employee could receive an initial two weeks of paid leave at two-thirds of the employee’s regular rate of pay, or where applicable, a higher federal, state, or local minimum wage, for up to eighty hours of pay.  These initial two weeks of paid sick leave would be covered under the EPSLA as the initial ten workdays of EFMLEA leave are unpaid.

Then, during the subsequent ten weeks, the employee could use EFMLEA leave to receive pay at a minimum of two-thirds of his or her regular rate of pay, or where applicable, a higher federal, state, or local minimum wage, for the hours that he or she would have been scheduled to work.  Under these leave provisions, the maximum amount of pay an employee may receive is $200.00 per day and $12,000.00 for twelve weeks. 

Note that FFCRA’s paid leave provisions only apply to employees who cannot work from home and/or employees who are permitted to telework but are not able to do.  However, employees may telework and take EPSLA leave or EFMLEA leave intermittently if the employer agrees.  This type of arrangement may be suitable for parents whose children are attending school in person a few days per week, but remotely other days.

Additionally, the FFCRA’s provisions apply to leave taken between April 1, 2020 and December 31, 2020.  This means that leave taken prior to April 1, 2020 does not count as EFMLEA or EPSLA leave.  However, if an employee took FMLA leave prior to April 1, 2020, that time may be discounted from the total twelve weeks permitted under the EFMLEA, depending on when the covered employer’s normal twelve-month FMLA period begins and ends.

Moreover, an employer may not require an employee to use his or her other leave entitlements, such as provided or accrued paid vacation, personal, medical, or sick leave before the EPSLA paid leave or concurrently with the EPSLA paid leave.

Finally, employers are prohibited from firing, disciplining, or otherwise discriminating against employees because they take emergency paid sick leave or expanded family and medical leave.

If you believe that your employer is covered and is improperly refusing to provide you with paid sick leave under the EPSLA or paid leave to care for your child under the EFMLEA, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.