HBL’s Weekly Employment Law Update Back to School: Three Tips to Avoid FFCRA Liability Traps

With states and localities across the country taking varying and, in some cases, uncertain approaches to reopening schools, employers have struggled to properly administer Families First Coronavirus Response Act (FFCRA) leaves based on school closures and childcare unavailability. Under its powers to administer and enforce FFCRA, the Department of Labor (DOL) has taken an active approach to penalizing employers.

As your risk management partner, we offer the following three strategies to administer FFCRA leaves this school year…

Tip #1: When determining employees’ eligibility for FFCRA leaves, consider employees’ total use of FFCRA leaves, including leave taken last school year.

For COVID-19 related school closures and childcare unavailability, employees are only entitled to a total of 12 workweeks of FFCRA leave for both the 2019/2020 and 2020/2021 school years. For employers, this means that you may only receive a tax credit for leave taken up to the 12-week threshold. If you would like to be flexible with employees who have exhausted their FFCRA leaves, you may want to consider options under other policies or placing the employee on a temporary leave of absence status.

Tip #2: Consider intermittent leave options to maximize employee productivity and leave options.

Under the FFCRA’s new regulations, the Department of Labor clarified the availability of intermittent leave for childcare purposes. With their employer’s agreement, employees may be eligible to take FFCRA leaves when, for example, their children are not permitted to attend school in person and must engage in remote learning. Particularly where employees can telework or work an alternative schedule, intermittent leave may meet mutual needs.

Tip #3: Request documentation to support the qualifying reason for an employee’s FFCRA leave, including the employee’s statement that his/her child’s school was closed for in-person attendance.

Because some school districts are opening in-person with the option of remote learning, employers have been getting FFCRA leave requests based on employees’ preferences for remote learning, as opposed to an actual school closure. As clarified by Department of Labor guidelines, employees are not eligible under the FFCRA based on preference. To qualify, employees must provide written certification that includes (among other things) that their child’s school was closed. (Please note that employees may be eligible for Emergency Paid Sick Leave under the FFCRA if, because of COVID-19, their children have been advised to self-isolate or quarantine.)

BONUS TIP: With holidays just around the corner, employees are not entitled to FFCRA leave for days that schools are not in session for the holidays.

FFCRA leave is only available where a school or childcare closure is for a COVID-19 related reason. When schools would be otherwise closed for the holidays, employees are not eligible for continued FFCRA for childcare. However, according to Department of Labor guidance, employees may be entitled to FFCRA leave if their children’s childcare provider or another program generally available over the holidays is closed or unavailable for a COVID-19 related reason. Also, as indicated, FFCRA leave may be available to care for children advised to quarantine.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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