Back to School – DOL Offers FFCRA Guidance on Hybrid Schedules and Optional Remote Learning


As the school year begins, employers are struggling to understand how the paid leave mandates under the Families First Coronavirus Response Act (FFCRA) apply to the varied iterations of school reopening. The Department of Labor has updated its Q&A resource to address some of these questions.

As a reminder, under the FFCRA, employers with fewer than 500 employees must provide ten days of emergency paid sick leave (EPSL), paid at 2/3 the employee’s rate up to $200 per day, for reasons including the COVID-related closure of the child’s school. In addition, employees may use their twelve weeks of Family and Medical Leave Act leave for such school closure, with the first two weeks unpaid (although it may be covered by EPSL) and the last 10 weeks paid at the same 2/3 rate as EPSL. This expanded FMLA (EFMLA) obligation also applies to smaller employers who are not subject to regular FMLA. Moreover, employees are eligible for EFMLA leave after one month (rather than one year) of employment. Notably, in order to qualify for these school-related leave rights, the employee must be needed to care for the child, with no other suitable person available to provide the care.

During the initial stages of the pandemic in the spring, many schools moved to online or distance learning only. The DOL issued a Q&A at that time confirming that these schools are considered closed for purposes of the FFCRA’s paid leave mandates.

Hybrid Schedules. Many schools have developed hybrid schedules, where the school is open each day but students alternate days between in-person and online learning, in order to minimize the number of students physically present at the school. The DOL states that employees may use FFCRA leave on those remote-learning days that their child is not permitted to attend in-person, because the school is effectively “closed” to the child on those days.

Optional Remote Learning. Another approach taken by many schools is to conduct in-person classes, but give parents the option to have their child participate remotely. The DOL states that, because the school is open for in-person attendance, FFCRA leave is not available. If, however, the child is s under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee will be able to take EPSL – but not EFMLA – for that reason.

Initial Remote Learning Subject to Change. Some schools have announced that the school year will begin with remote learning only, with a possible transition to in-person attendance at a later point. The DOL confirms that FFCRA leave is available while the school remains closed to in-person attendance.