New DOL Guidance Confirms Employees May Take Intermittent FFCRA Leave for Kids on Hybrid Schedules

By William Pokorny and Caroline Kane - Franczek P.C.

August 28, 2020

On August 27, 2020, the U.S. Department of Labor added to its list of Frequently Asked Questions regarding leave under the FFCRA, tackling questions related to FFCRA leave for children’s remote learning programs. Previously, the DOL’s guidance stated that an employee could take leave if a child’s school was open only for remote instruction, but did not provide guidance on certain common situations emerging for this new school year, including hybrid remote and in-person schedules and optional all-remote learning.

According to the new guidance, when a child’s school is operating on a hybrid attendance schedule in which students are attending school in person on some days while doing remote learning on others, employees are eligible for paid leave under FFCRA on remote learning days. Employees would not be entitled to FFCRA leave for days that a child is in school. Note that this seems to be a departure from the DOL’s published rule on intermittent leave, which stated that intermittent leave was allowed under the FFCRA only by agreement of an employer and employee. However, the new guidance is consistent with a New York federal district court decision striking down certain aspects of the DOL’s rule, including the provisions allowing employees to use intermittent leave only with their employer’s agreement.

In situations where a school gives parents the choice between having their child attend in person or participate in a remote learning and the parent chooses remote learning, the new guidance clarifies that the employee is not eligible for paid leave under FFCRA because the school is not “closed.” However, the DOL notes that the situation would be different if a child is under a quarantine order or is advised to self-isolate, in which case the parent may be eligible to take paid FFCRA sick leave to care for the child.

The DOL guidance makes clear that the availability of paid FFCRA leave may change as schools reevaluate their reopening plans. Franczek will continue to monitor developments and provide updates.