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Davis Brown Employment and Labor Law Blog



Back to School Brings a New Wave of COVID-19 Policies and Questions - September 1, 2020

With many families facing uncertainty involving their children’s schools, questions about the applicability of the Emergency Family and Medical Leave Expansion Act (E-FMLEA) provided under the Families First Coronavirus Relief Act (FFCRA) continue to come up.

 

The Emergency Family and Medical Leave Expansion Act applies only when you are on leave to care for your child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons.

 

Allowed Leave

Employees are entitled to 12 weeks of E-FMLEA under the FFCRA (except if employed by an exempt employer).  Of those 12 weeks, 10 weeks are paid at 2/3 of the employee’s base rate up to a maximum total of $10,000. If the employee has not exhausted the emergency paid sick leave (EPSL) benefit, then the first two weeks are also paid up to a maximum of $2,000. Employees are permitted to take leave intermittently in minimum increments based on the employer’s standard policies. Employers may also allow employees to also use any other benefit time, such as PTO, to supplement the minimum pay.

 

Allowing Telework or Flex Time

If your employees can perform their work remotely, allowing telework may allow them to continue working while caring for a child at home. Employers may also consider allowing flex time so that employees can care for their child during the day and perform work for the company early in the morning, during nap time, later in the evening, or whenever fits their family schedule.

 

Q&A

1. What if a child’s school is 100% virtual or is a hybrid model?

As of August 15, the DOL states if the physical school is closed, then the school is “closed” for FFCRA purposes. This is true even if some of the teaching is done online (distance learning). If a school is “closed” due to COVID-19, then FFCRA benefits are available.

 

2. What if an employee chooses to keep children home for virtual learning?

If the school is 100% open and the employee chooses to keep their children home, they do not qualify for FFCRA leave. On August 27, the federal government clarified FFCRA qualification if an employee elects virtual learning over in-person. If a school offers families the choice of physically sending the children to school or choosing virtual learning, and an employee selects the virtual option, the employee does not qualify for FFCRA leave because the school is not closed or unavailable.


3. What if a child’s school changes its plans and goes virtual after originally allowing in-person school?
If the school is virtual, then the child’s school is closed and FFCRA benefits may apply.

4. What if the employee chooses to homeschool their children?

There are no FFCRA benefits available under this scenario.

 

5. What if a spouse is called back to work and children are without care?

Situations change rapidly, especially during this period of uncertainty, and flexibility is key. If an employee has been successfully teleworking and something changes, i.e., a spouse is called back to work, the child’s school goes virtual, or some FFCRA-qualifying reason that the employee cannot continue to telework, the FFCRA benefits are available.

 

6. What if the school quarantines children?
There are two possible reasons for a school to quarantine a child with different results:
  1. If a child is unable to return to school because of COVID exposure in the classroom, then the child’s school is “unavailable” and FFCRA benefits are available for the employee.

  2. If the school is quarantining the child because of personal exposure, the school closure component of the FFCRA is not applicable.

 7. Can I forbid employees with children in schools with elevated positivity ratings from coming to the office?

Generally, employers are encouraged to maintain policies to mitigate the risk of spread, including a policy to report exposure to a designated contact. Other screenings should be implemented including temperature checks and symptom checks. Our previous FAQ covers these checks.

 

8. What if an employee lives with a child who tests positive?
Employers should include situations like this in their policies. One possible policy is if an employee has been in close contact (defined as within six feet for more than 15 minutes) with someone who is positive, they must quarantine for 14 days. If the employee does not develop symptoms, then they may return to work after the expiration of the 14-day quarantine period.

 

If they develop symptoms, they may return to work only after 72 hours without symptoms and ten full days have passed since the onset of symptoms. We have received some questions about this as it does allow employees with symptoms to be out of work for a shorter time than an employee who is exposed but never develops symptoms. This is because the incubation period for COVID is 14 days and the contagious cycle for COVID (once developed) is 10 days.

 

9. What if an employee tested positive for COVID and is later exposed to someone who tested positive?
The CDC states recovered individuals may have 90 days of immunity from the virus. Notwithstanding, employers are encouraged to maintain a policy that if an employee has been around someone who tested positive (close contact, see number 8), they should quarantine for the required 14-day minimum. Telework may be considered for employees under quarantine.  

 

10. What if an employee has a negative test following exposure to someone who tested positive?
The virus has a 14-day incubation period and the test may a return false negative if taken too early after exposure. This variability means employers need to think carefully about quarantine requirements based on what is appropriate for their industry or company.  


11. What if an employee was around someone last month and hears they’ve tested positive?

As long as the employee does not have symptoms, they can come to work. If the employee was in close contact more than 14 days ago with someone who has tested positive, they are already outside of the required quarantine period.


12. What if an employee has symptoms, but says they’re not COVID-related?

Employers may hear from employees reporting that their symptoms are allergies or a cold, or it can’t be COVID because they had a negative test. There are a variety of factors impacting how employers should respond including the industry, the specific business, and medical certification, among others.  Employers should consult an employment attorney to address this question.


The Big Picture

Employers should review their policies as the school year starts to ensure they have integrated the FFCRA benefits and make sure that these policies have been communicated to employees.

 

An employment attorney can help you draft policies, communications, screening checklists, and the forms needed for employees taking advantage of the FFCRA leave benefits.




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