Schools throughout the country are creating various plans associated with reopening. Several districts in my state, Massachusetts for example, have announced hybrid returns with students alternating between attending school and remote learning (sometimes in the same week), while others have announced full remote learning.
With the reopening looking very different than it has in any previous year and being decided last minute in many districts, parents are anxious about meeting their professional and family obligations, and employers are concerned about being able to run their businesses this fall.
Some jobs just can’t be done from home, and some parents who would otherwise be able to work at home will need to help their children with remote learning. And, if this weren’t enough, COVID-19 school-based outbreaks are a growing concern that could lead to additional, mid-quarter closures at schools throughout the nation. So, what should employers do?
Employment Law Compliance: FFCRA Leave
Many employees won’t be able to work in the traditional sense while their children are remote learning, and they may be eligible for paid leave. The federal Families First Coronavirus Response Act (FFCRA) provides most parents at businesses with fewer than 500 employees with job-protected paid time off (PTO) when school is closed, which includes situations where some or all instruction is being provided through distance learning.
Parents who can’t work or telework because a child’s school is closed will need to confirm no other person will be providing childcare during the period of leave received. Additionally, if the child or children are over 14, the employee must articulate the special circumstances that require the employee to remain home and care for them.
Employees who have been employed for less than 30 days are immediately eligible for 2 weeks of “emergency sick leave” under the FFCRA, and those who have been employed for at least 30 days may be able to take up to 12 weeks of expanded family and medical leave (EFML), including on an intermittent basis, assuming the leave hasn’t already been taken for other permissible purposes. The leave is also paid subject to certain caps and requirements.
Even if employees don’t need time off because of school closures, employers need to prepare to respond to their requests to take care of sick children, too. Unpredictable illness-related absences can pose another challenge for employers and employees. Children may be exposed at school and bring the virus home or experience coronavirus-like symptoms and be advised to quarantine. Employees might need to request time off to care for their sick children and may even become ill themselves.
The FFCRA provides up to 2 weeks’ PTO for COVID-19-related illnesses, including caring for a child, as long as the employee hasn’t already used the time for another authorized purpose. Your state may also have leave laws in place, like the Massachusetts Paid Sick Leave Statute and the Family and Medical Leave Act (FMLA), which may also provide employees with PTO.
What If You Aren’t an FFCRA-Covered Employer?
Not all employers are covered by the FFCRA. Employers with 500 or more employees aren’t covered by the law, and small employers and healthcare providers may be exempt from certain requirements, including the mandate to provide PTO for school closures.
Lawmakers in several states, including Massachusetts, are considering legislation that would fill the gaps in the FFCRA’s paid leave provisions, and several states have already extended virus-specific paid leave. Employers whose employees aren’t eligible for protected leave will have to make tough decisions including whether to accommodate their need to assist a child with schooling (e.g., telework, shift changes, reduced workweeks, or job-protected leave) or lay off or otherwise separate them from employment.
Remain in Compliance
Many employers also may allow employees to telework while assisting their children with remote learning. You should remember that other employment laws are still in play, and you must continue to comply with them. For instance, employers in Massachusetts must be sure employees continue to take their legally required meal breaks and record all hours worked.
You can, and should, hold employees accountable as you would in the workplace. If an employee is supposed to be teleworking, you can expect him to perform his responsibilities at home at the same level and with the same professionalism as he would in the office.
Planning
The year 2020 is unlike any other by far. The only thing guaranteed is that employers cannot possibly plan for all potential scenarios. You should ready your business as much as possible by preparing to be short-staffed in the fall and maybe longer, putting appropriate work-from-home plans in place, and letting employees know where to go with questions and for additional information. This is a difficult time for everyone, and you need to be ready to react.
Marylou Fabbo is a partner at the firm of Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. Marylou can be reached at mfabbo@skoler-abbott.com.
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