Sports Are Back, But Is School? Navigating School Reopening Options with Employee Leave

After a hiatus of several months, Hulu can finally live up to its slogan. It has live sports, and, well, finally, so do we. Beginning in late July and early August, major American sporting leagues began their return to action, including the MLB, NBA, NHL, and MLS. The NFL is in the midst of preparations for its season, which is set to begin on September 10.

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Not surprisingly, due to the inherent differences in the various sports, these leagues have taken different approaches in their reopening plans. The MLB, NBA, and NHL have decided not to have fans in attendance and instead have utilized other options to attempt to replicate the normal sporting environment, including virtual fans and artificial noise. The MLS has permitted limited-capacity fan attendance in accordance with local laws, and the NFL is looking to do the same.

NBA and MLS games commenced exclusively in their own “bubbles,” located in Orlando, Florida, while the NHL has divided its games between arenas in Toronto and Edmonton. On the other hand, the MLB has, and the NFL plans to have, games continue to be located at each respective team’s home stadiums.

With respect to college football, the determination of whether, and how, to proceed has thus far been made on a conference-by-conference basis, with some choosing to cancel the season (such as the Big Ten and Pac-12) and others forging ahead (such as the SEC, ACC, and Big 12).

So far, with the key phrase being “so far,” things are proceeding as planned for all of these institutions. Of course, as we know, things can drastically change, particularly with those sports leagues that are not operating out of a “bubble,” as the risk of any COVID-related flare-up could put the season in jeopardy.

In fact, for a short while during the beginning of the MLB season, there was concern the season would be canceled when positive tests started coming up in clusters on specific teams. However, it appears that the MLB has since recovered and is forging ahead.

Schools Also Reopening

This diverging approach in our major American sports leagues mirrors in many ways the different approaches school districts across the country are taking with respect to fall reopenings.

Some have decided to return with only virtual sessions for the foreseeable future; some have virtual instruction, with certain staggered in-person attendance beginning dates; some have begun in-person classes as normal; and others have adopted a form of hybrid virtual and in-person learning, whether that be alternating school days or creating a.m. vs. p.m. sessions.

Many of those districts that are opening in-person are also affording parents the option to “opt out” and have their child attend school virtually due to personal circumstances or preferences.

Regardless of the method used, essentially all school districts acknowledge that their current plans are subject to revision should future circumstances warrant. For example, those districts that have full or partial reopening have explicitly noted they may turn to an all-virtual method if clusters of cases arise. All of this is enough to make any parent’s head spin (myself included) with regard to balancing childcare issues and work obligations.

A Deft Touch from Employers Can Go a Long Way

Employers as a result need to be aware of the benefits their employees are entitled to under these unprecedented times and to plan accordingly. In addition, employers need to be prepared to receive questions from their employees and answer appropriately, both with compassion and understanding the realities of their business needs.

While all employers by now should be aware of the leave options and benefits available to employees under the Families First Coronavirus Response Act (FFCRA), passed earlier this year, the fact remains that with divergent school reopening plans throughout the country, this issue will become even more prevalent.

In fact, just last week, the U.S. Department of Labor updated its FFCRA guidance to address some of these new issues, which include that (1) employees may be eligible to take paid leave on days their child is engaged in remote learning if their district is offering a hybrid-attendance curriculum; (2) employees are not eligible for FFCRA leave if they choose for their child to do virtual instruction when the school offers in-person classes; and (3) employees may use FFCRA leave if their school is starting off with remote learning but may lose this benefit if and when the school begins to offer in-person attendance.

This, of course, only addresses benefits under the FFCRA and does not even include additional paid sick leave benefits under expanded federal law and the various laws initiated at the state and local level that may provide additional options businesses must provide their employees.

As a result, employers need to familiarize themselves with these various obligations and determine what flexibility they can provide to employees from a business perspective. While these issues, of course, have been prevalent for the past several months as a result of the pandemic, the diverging manner in which school districts are reopening presents various new challenges for employers, particularly those with multistate operations.

Selfishly, it is great having live sports again to consume (and to get the kids off their electronic devices!), and whether these institutions take differing approaches does not have an effect on a large portion of employers and employees. However, the vast differences in which schools are reopening, and the uncertainty with regard to their continued effectiveness, create numerous challenges for businesses and their employees.

As a result, employers should be aware of this ever-changing landscape, the benefits that must be afforded to their employees, how best to communicate with their employees regarding these challenges, and what operational issues are affected and can be minimized. In addition to this, unfortunately, the yearly exaltation of sending your children “back to school,” knowing for certain it will continue for the next 9 months or so, simply isn’t in the cards (hopefully only for this year).

Now, if you’ll excuse me, I hear one of my kids screaming in the background and need to check whether he simply is expressing anger at losing in a video game or actual parental assistance is required.