Everything You Need To Know About Taking FMLA During Your Child's School Closure

January 13, 2021: The Families First Coronavirus Response Act was a new expansion on the Family Medical Leave Act requiring certain employers to provide employees with paid sick leave or family and medical leave for reasons related to COVID-19. One of these rules allowed parents who don’t have childcare while their kid’s school or day care is closed to take FMLA. Well, that rule expired on the last day of 2020 with the rest of FFCRA, according to the Department of Labor.

Now, per the Department of Labor’s website, employers are not required to provide employees with FFCRA leave. That said, they can grant it to you voluntarily through March 31 if you meet the eligibility requirements and did not take leave in 2020. They can even receive a tax credit for doing so. Under the FFCRA, “an employee qualifies for family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19,” says David Reischer, employment attorney and CEO of LegalAdvice.com, in an email to Romper.

So, yes, you can take paid leave until March 31 if your child’s school or day care is closed due to COVID-19 and your employer agrees to it. But how do you go about taking leave? Your company’s HR department should be your first stop.

“Since there’s been such a matrix in how different school districts are opening, we ask our employees to come to us, explain his or her situation, and then we can assess and develop a plan for them or adapt their schedules accordingly,” says Karrien Francis, chief human resources officer of City Harvest, in an interview with Romper. “This can mean providing them with temporary leave under FFRCA, having them work intermittent hours that work for their schedule under FFCRA, or having them continue their remote work routine depending on the kind of work that they do. It all depends on the employee situation — but it first begins with a conversation.”

Original, August 14, 2020: As schools across the country grapple with reopening for in-person schooling or figuring out how to go virtual, parents are also left to decide what they think is best for their kids (and if they can even keep them home). If you’re considering taking FMLA during school closures because of COVID-19, the Department of Labor has put some temporary rules in place to make sure you and your kids are covered.

The Families First Coronavirus Response Act (FFCRA), a new expansion on the Family Medical Leave Act (FMLA), requires certain employers to provide employees with paid sick leave or family and medical leave for reasons related to COVID-19. These new rules are in place until December 31, 2020. And one of them allows parents who don’t have childcare while their kid’s school or day care is closed to take FMLA.

“The FMLA guarantees eligible employees up to 12 weeks of unpaid leave annually with no reprisal or threat of job loss. An employer cannot deny an eligible employee the right to unpaid leave,” says David Reischer, employment attorney and CEO of LegalAdvice.com, in an email to Romper.

Now, under the FFCRA, “an employee qualifies for family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.”

The new FFCRA rules say that employees are eligible for up to 12 weeks of paid leave, at 40 hours per week for full-timers. For part-time employees, you’re eligible for leave for the number of hours that you’d normally be scheduled to work over that period. And if you do take leave, you're entitled to receive your pay at two-thirds your regular rate, or two-thirds the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 total over your 12 weeks.

But what if your child’s school is open, and you’re opting to keep them at home this fall?

“The plain language of the FFCRA seems to be pretty clear that it would only apply if the ‘school or child care provider is closed or unavailable for reasons related to COVID-19,’” says Reischer. “However, a person might want to apply for leave anyways depending upon the specific facts and circumstances of the family.”

“Under the rule, you will not be eligible for paid leave if your child’s school offers an in-person option,” says Karrien Francis, chief human resources officer of City Harvest, in an interview with Romper. “Individuals are required to provide documented proof of the status of their child’s school. With that said, my recommendation to employers right now is to create an open dialogue with your employees, and, if possible, offer them FFCRA, flexible scheduling, or work-from-home options.”

As with FMLA, not all employees are eligible for COVID-related leave. For example, federal employees are not covered by these all of these expanded rules, only by the paid sick leave provision. Small businesses with fewer than 50 employees are often exempt as well, if they can prove providing leave would “jeopardize the viability of the business as a going concern.” However, if you work in most any other company, you should be covered.

Reischer says, “FMLA eligibility mandates that an employee must have been employed with the company for at least 12 months,” and the employee must have been employed “a minimum of 1,250 hours during the 12 months prior to the start of FMLA leave.”

That time period is significantly shorter under the FFCRA rules. Now, all employees of covered businesses are eligible for two weeks of paid sick time out of the 12. To be eligible for the other 10, you just have to have been employed there for at least 30 days.

So, yes, you can take paid leave this fall if your child’s school or daycare is closed due to COVID-19. And yes, you should be paid. But how do you go about taking leave? Your company’s HR department should be your first stop.

“Since there’s been such a matrix in how different school districts are opening, we ask our employees to come to us, explain his or her situation, and then we can assess and develop a plan for them or adapt their schedules accordingly,” says Francis. “This can mean providing them with temporary leave under FFRCA, having them work intermittent hours that work for their schedule under FFCRA, or having them continue their remote work routine depending on the kind of work that they do. It all depends on the employee situation — but it first begins with a conversation.”

Sources:

Karrien A. Francis, chief human resources officer of City Harvest, New York City’s largest food rescue organization

David Reischer, employment attorney and CEO of LegalAdvice.com