Back to School with Questions
As parents, teachers, children and schools prepare to go “back to school,” everything looks different than back to school has ever looked before. Parents maybe thinking less about the first day of school outfit, boxed lunches or supplies then considering the logistics of all the new procedures and policies that the school’s have implemented to prepare for re-opening whether that be virtual, in-person learning or the hybrid models. Employers will be facing a number of challenges to work through issues with employees who are parents or legal guardians some of which include:
1) Parent handling a full or partial virtual learning environment;
2) Parent getting call that child has been quarantined after returning to an in-person learning environment;
3) Intermittent leave under the EFMLA under the Families First Coronavirus Response Act;
4) Child being exposed and causing working parent or other family member to be sick or exposed; and
5) possible needs for regular unpaid FMLA by the worker.
As Employers are faced with these situations and the unpredictability of them, they may want to revisit the FFCRA reasons and guidance from the Department of Labor (DOL). Revisit the DOL website Q&A on the FFCRA here.
One question that I would remind employers to revisit is the DOL’s #91:
QUESTION #91 - My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?
DOL RESPONSE: You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation outlined in section 826.100 of the Department’s rule applying the FFCRA. While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason. This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.
The DOL in this question above is addressing circumstances changing for employees and their expectation of how employers can ask for an explanation but to recognize that parents may have reasons for the change.
Also Employers may want to consider which individuals may already know they need leave and start working through that for the fall semester to plan as much as you can based on what is known today.