Earlier this year, Congress passed the Families First Coronavirus Response Act (FFCRA) in direct response to the reality that many working individuals would be forced to miss work due to COVID-19 related reasons. After a long spring and summer, childcare and youth organizations subject to the FFCRA are now grappling with how to bring their employees back and comply with this new law.
By way of a refresher, here are a few quick facts on the FFCRA:
- Applies to private employers and certain public employers with
- Up to 2 weeks/80 hours of paid leave for ALL employees who need to take a leave of absence in order to be quarantined and/or are experiencing COVID-19 related symptoms.
- Up to 2 weeks/80 hours of 2/3 paid leave for ALL employees who need to take a leave of absence in order to care for an individual who must quarantine or a minor child whose childcare facility or school is closed or unavailable.
- Up to 10 additional weeks of 2/3 paid leave for employees who have been employed at least 30 days at the time of the request to care for a minor child who childcare facility or school is closed or unavailable.
- Schools operating virtually in full or in part qualify as unavailable.
Now that we have covered the basics, let’s get into the nuances. The FFCRA seeks to provide assistance for parents who are faced with schools that are reopening with partial or full virtual learning. These parents may need to be at home to monitor and facilitate their child’s learning. Meanwhile, childcare and youth centers are reopening and need their employees present to meet local, state, and national guidelines and legal mandates on the adult to student ratios. These organizations may be caught between a rock and a hard place if they are set to reopen, but their employees who are also parents qualify for extended paid leave under the FFCRA due to their own child(ren)’s child care facility or school being closed. So what can an organization do?
A childcare or learning center may opt to offer employees the ability to bring their school-age children to work with them. As long as the additional number of children does not violate their capacity and compliance restrictions, this is a viable option. The organization should think through how to accommodate the school-age children in a way that would allow the children to complete their school work virtually and allow the parent-employees to fulfill their employment duties. If executed successfully, this is the best case scenario for such organizations.
What happens, however, if an organization offers its parent-employees the ability to bring their child(ren) into the workplace and they refuse? According to the wording of the FFCRA, the parent-employee is entitled to up to 12 weeks of leave if the employee is “unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.” There is nothing in the law requiring a parent-employee to search for an alternative school or child care provider so that he or she can go to work. Since allowing the parent-employee to bring their child(ren) into the workplace is essentially an alternative solution, the organization would have a difficult time justifying denying the leave covered under the FFCRA because the parent-employee declines the alternative option. This reality can certainly place a burden on childcare or learning facilities.
Organizations should be mindful, nonetheless, that if they have less than 50 employees they may qualify for an exception to the FFCRA “if the leave requirements would jeopardize the viability of the business as a going concern.” Additionally, for organizations that previously qualified for the Family Medical Leave Act (FMLA), parent-employees who took protected FMLA leave within the past 12 months are not eligible for an additional 12 weeks of leave under the FFCRA. Instead, they are entitled to the initial two weeks/80 hours of leave, and then are only entitled to the leave they have remaining for the extended 10 weeks of leave. For instance, if the parent-employee took three weeks of FMLA leave within the last 12 months, he or she is only eligible for a total of nine weeks of leave under the FFCRA. Additionally, if the parent-employee took FFCRA leave in the spring to care for a child, that time can be deducted from the additional time available under the FFCRA for the fall.
One final note, childcare and youth organizations should be cautious not to selectively recall employees back to work based on who the organization believes will or will not request protected leave under the FFCRA, i.e. choosing not to recall parent-employees. This discriminatory recall could lead to liability.
There is no doubt that childcare and youth organizations are facing unique challenges during this pandemic. The key is to being aware of the law and making a good faith effort to comply.