The Emergency Family and Medical Leave Act (EFMLEA ) allows employees to take up to 12 weeks of leave to care for their son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. With school back in session, employers face many unique questions about how to determine whether an employee is eligible for EFMLEA : When is a school “closed” for EFMLEA purposes? What if the school provides in-person classes, but the employee’s child is at high risk of severe complications from COVID-19? Do I have to provide EFMLEA leave to parents of teenagers whose school is operating remotely? This article offers some guidance for employers on these important questions.
A school is “closed” under the Department of Labor’s interpretation of the statute when in-person learning is not available to a child. So, for example, if the school operates on a hybrid schedule where each child is assigned specific days of the week for in-person attendance and other days when the child must attend classes remotely, the school is “closed” to that child on the child’s remote learning days. EFMLEA paid leave is available to the parent for those days.
On the other hand, the Department of Labor has recently clarified that, if the school offers the option for the child to attend in-person or remotely, and the parent elects to have the child attend remotely, the parent is not eligible for EFMLEA because the school is not “closed.”
Similarly, if a parent makes the decision to have a child at high risk of severe complications from COVID-19 stay home and take only remote classes when in-person learning is otherwise available to the child, the parent is not eligible for EFMLEA paid leave because the school is not closed. If, however, the school refused to permit a child at high risk of severe complications from COVID-19 to attend in-person, then EFMLEA leave would be available to the parent because the school is effectively “closed” to that child. In that case, it is recommended that the employee obtain a note from the school confirming that the child is not permitted to attend in-person.
Finally, what if the child is a teenager? Do employers really have to allow employees to take EFMLEA leave to watch over a high school-age child? The EFMLEA adopts the FMLA definition that, with certain exceptions, a child is a person under 18 years of age. However, the IRS has issued guidance stating that for employees seeking to take leave to care for a child older than 14 who attends school remotely during daylight hours, the employer should obtain a statement from the employee confirming that special circumstances exist that require the employee to provide care. Therefore, although the employee may be eligible for EFMLEA leave, the parent will have to justify the need to care for their 15 through 17-year-old child.
The EFMLEA is complicated, and when difficult questions like these arise, Employers Council attorneys and HR consultants are available to assist.