Coronavirus (COVID-19), HR Management & Compliance

Back to School Brings a New Wave of COVID-19 Policies and Questions

With many families facing uncertainty involving their children’s schools, questions about the applicability of the Emergency Family and Medical Leave Expansion Act (EFMLEA) provided under the Families First Coronavirus Response Act (FFCRA) continue to come up.

COVID-19
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The EFMLEA applies only when you are on leave to care for your child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19-related reasons.

Allowed Leave

Employees are entitled to 12 weeks of EFMLEA leave under the FFCRA (except if employed by an exempt employer). Of those 12 weeks, 10 weeks are paid at two-thirds of their base rate up to a maximum total of $10,000. If they haven’t exhausted the emergency paid sick leave (EPSL) benefit, then the first 2 weeks are also paid up to a maximum of $2,000.

Employees are permitted to take leave intermittently in minimum increments based on the employer’s standard policies. You also may allow them to use any other benefit, such as paid time off (PTO), to supplement the minimum pay.

Allowing Telework or Flex Time

If your employees can perform their work remotely, permitting telework may allow them to continue working while caring for a child at home. You may also consider allowing flex time so they can care for their child during the day and perform work for the company early in the morning, during nap time, later in the evening, or whenever fits their family schedule.

Q&A

What if a child’s school is 100% virtual or is a hybrid model? As of August 15, the U.S. Department of Labor (DOL) states if the physical school is closed, then school is “closed” for FFCRA purposes. That’s true even if some of the teaching is done online (distance learning). If a school is “closed” because of COVID-19, then FFCRA benefits are available.

What if an employee chooses to keep children home for virtual learning? If the school is 100% open and an employee chooses to keep her children home, she doesn’t qualify for FFCRA leave. On August 27, the federal government clarified FFCRA qualification if an employee elects virtual over in-person learning.

If a school offers families the choice of physically sending the children to school or choosing virtual learning, and an employee selects the virtual option, she doesn’t qualify for FFCRA leave because the school isn’t closed or unavailable.

What if a child’s school changes its plans and goes virtual after originally allowing in-person school? If the school is virtual, then the child’s school is closed, and FFCRA benefits may apply.

What if the employee chooses to homeschool? There are no FFCRA benefits available under this scenario.

What if a spouse is called back to work and children are without care? Situations change rapidly, especially during this period of uncertainty, and flexibility is key. If an employee has been successfully teleworking and something changes (i.e., a spouse is called back to work, the child’s school goes virtual, or for some FFCRA-qualifying reason the employee cannot continue to telework), the FFCRA benefits are available.

What if the school quarantines children? There are two possible reasons for a school to quarantine a child with different results:

  • If a child is unable to return to school because of COVID exposure in the classroom, then the child’s school is “unavailable,” and FFCRA benefits are available for the employee.
  • If the school quarantines the child because of personal exposure, the school closure component of the FFCRA isn’t applicable.

What if an employee lives with a child who tests positive? Employers should include such situations in their policies. One possible policy is if an employee has been in close contact (defined as within 6 feet for more than 15 minutes) with someone who is positive, they must quarantine for 14 days. If the employee doesn’t develop symptoms, then they may return to work after the expiration of the 14-day quarantine period.

If they develop symptoms, they may return to work only after 72 hours without symptoms and 10 full days have passed since the onset of symptoms. We have received some questions about this because it does allow employees with symptoms to be out of work for a shorter time than an employee who is exposed but never develops symptoms. This is because the incubation period for COVID is 14 days and the contagious cycle for COVID (once developed) is 10 days.

What if an employee tested positive for COVID and is later exposed to someone who tested positive? The Centers for Disease Control and Prevention (CDC) states recovered individuals may have 90 days of immunity from the virus. Notwithstanding, employers are encouraged to maintain a policy that if an employee has been around someone who tested positive (close contact), they should quarantine for the required 14-day minimum. Telework may be considered for employees under quarantine.

What if an employee has a negative test following exposure to someone who tested positive? The virus has a 14-day incubation period, and the test may a return false negative if taken too early after exposure. This variability means employers need to think carefully about quarantine requirements based on what is appropriate for their industry or company.

What if an employee was around someone last month and hears they’ve tested positive? As long as the employee doesn’t have symptoms, she can come to work. If she was in close contact more than 14 days ago with someone who has tested positive, she is already outside of the required quarantine period.

What if an employee has symptoms but says they’re not COVID-related? Employers may hear from employees reporting their symptoms are allergies or a cold, or it can’t be COVID because they had a negative test. There are a variety of factors affecting how employers should respond, including the industry, the specific business, and medical certification, among others. You should consult an employment attorney to address this question.

Big Picture

You should review your policies as the school year starts to ensure you have integrated the FFCRA benefits and make sure the policies have been communicated to employees.

An employment attorney can help you draft policies, communications, screening checklists, and the forms needed for employees taking advantage of the FFCRA leave benefits.

Michele Brott is an attorney with the Davis Brown Law Firm in Des Moines, Iowa. You can reach her at michelebrott@davisbrownlaw.com.