Employer Leave Obligations as Schools Reopen

As the 2020-21 school year approaches, parents and employers alike face tremendous challenges. Will education be in person, hybrid, or entirely virtually? How will working parents care for their children while doing remote schooling? It’s important for business owners to understand Federal and State rulings that impact both employers and employees.

Obligations Under Federal Law

Families First Coronavirus Response Act (FFCRA)

  • Declares that most employers with fewer than 500 employees must provide 12 weeks of leave to eligible employees to care for children in the event of school closures 
  • It only applies if the employee cannot work from home. 
  • The Department of Labor (DOL) has stated that the FFCRA leave used last spring does not impact the employee’s ability to use the leave in the coming months
  • If an employee relied on a co-parent/caregiver’s FFCRA leave last spring, they have the right to use their FFCRA leave for the upcoming fall

What if an employee has a child with a “hybrid” school model? 

  • The DOL has stated that if due to capacity or other Covid-19 related limitations a childcare provider or in-person school that is partially available to some students, but is not to the employee’s student then the school service is still considered “closed”
  • Employees may be eligible to use FFCRA during remote school sessions/days each week.

What if an employee selects a virtual option for their children, are they still eligible for FFCRA? 

  • This situation has still not been adequately addressed, but employers should consider the following: 
    • Currently, it does not appear that if an employee chooses the virtual option for their child when the school is offering in-person learning that they are eligible for the FFCRA leave.
    • If employees chose the virtual option due to the concern of their child’s underlying health condition, then the employer may want to consider this circumstance to be covered by the traditional Family and Medical Leave Act (or Emergency Paid Sick Leave Act)

Obligations under Maine Law 

  • Employers must provide employees unpaid leave for specific reasons related to an extreme public health emergency. “Extreme public health emergency” is defined as the occurrence or imminent threat of widespread exposure to a highly infectious or toxic agent that poses an imminent threat of substantial harm to the population of the state. 
  • The employee must provide reasonable notice of the need for leave
  • Maine passed a paid time off law that will be effective January 1, 2021. This will apply to employers that employ more than ten employees for more than 120 days a year will provide paid leave for any purpose (sick leave, vacation, or any other reason). 
Special thanks to Maine Law and MeRTEC, who compiled this information as part of their Maine Law Small Business COVID-19 Support Newsletter.