The DOL recently updated its guidance regarding when childcare leave can be taken under the Families First Coronavirus Response Act (or “FFCRA”).  FFCRA requires most employers to provide employees with up to 12 weeks of protected leave, paid at 2/3rds the employee’s regular rate of pay, up to a maximum of $200 a day (reimbursed in the form of a tax credit), if an employee is unable to work or telework because the employee’s child’s school or place of care is closed for reasons related to COVID-19.

As we start the new school year, many schools are still either partially or fully closed for in-person learning, and the DOL just issued new guidance regarding what it means to be “closed” for purposes of FFCRA leave:

  • If a school has moved to online instruction or a similar model in which children are expected to attend class and/or complete assignments at home, it is still considered “closed” for FFCRA purposes.
  • If a school is operating on an alternative day or similar hybrid basis (e.g., students alternate between days attending school in person and days participating in remote learning), it is considered “closed” for FFCRA purposes only on the days that the child is not permitted to attend school in person and must instead engage in remote learning. (Note that while intermittent FFCRA leave is at the employer’s discretion, this new guidance suggests that FFCRA leave should be made available intermittently for periods of home learning.)
  • If a school gives parents a choice between having their child attend in person or participate in a remote learning program for the fall, the school is not considered “closed” for FFCRA purposes. If parents choose to have their child remain home because, for example, they are worried about their child contracting COVID-19, they are not entitled to paid leave under FFCRA.

We previously blogged about childcare leave under FFCRA here and here.  If you have any questions, please contact us.

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Photo of Brenda Baumgart Brenda Baumgart

Brenda Baumgart is practice group leader for Stoel Rives’ Labor & Employment group and devotes her practice to assisting companies of all sizes navigate the complexities of employment and labor laws. She partners with clients to provide day-to-day advice and compliance counseling, assisting…

Brenda Baumgart is practice group leader for Stoel Rives’ Labor & Employment group and devotes her practice to assisting companies of all sizes navigate the complexities of employment and labor laws. She partners with clients to provide day-to-day advice and compliance counseling, assisting them with finding practical solutions while minimizing litigation risk. Her litigation and trial work includes defending employers in federal and state courts in all areas of employment law (including single plaintiff cases and class/collective actions), handling appeals exclusively on matters of labor and employment law before appellate courts, including the Oregon Court of Appeals, the Oregon Supreme Court, the Ninth Circuit, the Eighth Circuit, and the Fifth Circuit, and administrative proceedings before various governmental agencies. Brenda also has a strong traditional labor practice and represents clients in labor arbitrations and matters before the National Labor Relations Board (NLRB). She conducts internal workplace investigations for private and public sector clients.

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Photo of Karen O'Connor Karen O'Connor

Karen O’Connor is a partner in the firm’s Labor & Employment group whose practice includes counseling and litigation on complex employment issues including leave laws, workplace harassment and discrimination, discipline and documentation, and drug and alcohol issues. She represents clients before Oregon and…

Karen O’Connor is a partner in the firm’s Labor & Employment group whose practice includes counseling and litigation on complex employment issues including leave laws, workplace harassment and discrimination, discipline and documentation, and drug and alcohol issues. She represents clients before Oregon and Washington state and federal courts and in administrative proceedings. Karen co-teaches in the human resources program at Portland State University and is a frequent speaker in the community.

Click here for Karen O’Connor’s full bio.