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Updated Aug. 28, 2020 with additional DOL guidance released after original publication

With the new school year upon us, parents are faced with new child care concerns due to the continued risk of COVID-19 transmission and varying approaches to that risk by different school districts. In some cases, online study is the only option. In others, in-person attendance may be periodic or may be voluntary. Employers subject to the enhanced Family and Medical Leave Act rules (FMLA+) in recent federal legislation have been fielding questions from employees wondering if they might qualify for paid FMLA+ leave in these situations. The DOL issued new FAQs (numbers 97 – 99) to clarify when FMLA+ is available to an employee because of the school’s remote learning decisions.

The Families First Coronavirus Response Act (FFCRA) created a new classification of paid FMLA (FMLA+) that expands FMLA protections to employees who have been employed for at least 30 days and who work for employers with fewer than 500 employees (or any governmental employer). FMLA+ provides up to 12 weeks of leave (reduced by any FMLA time already taken) to care for a child whose school is closed or whose child care provider is unavailable due to the coronavirus. The first two weeks of FMLA+ are unpaid. However, an employee who has sick leave available under FFCRA may be paid two-thirds of salary, up to $200 per day, for the first two weeks by taking that sick leave concurrent with FMLA+. During weeks 3-12 of FMLA+, an employee is entitled to two-thirds of their salary, up to $200 per day. Leave under FMLA+ may only be taken through December 31, 2020.

The following chart outlines when FMLA+ may apply under different school scenarios relating to in-person or remote learning via online study:

School eventDoes FMLA+ apply?
Online study only – school offers ONLY remote learning via online study, no in-school study.When a child’s school offers only online study, an employee may take FMLA+ during that period to care for an eligible child. The school is deemed closed when online study is the only option.
Limited in-person study – school offers limited in-person study with remaining study via remote learning. E.g., Student attends classes in person on Monday and Wednesday and study occurs online for the remaining school week.When a child’s school offers partial in-person and partial online study, an employee may take FMLA+ on the days an eligible child is not attending school for in-person study.
Voluntary election – school offers parents the option of either sending children to schools for in-person study or staying home for online study.When the school gives the parent an option between in-person and online study, the school is not technically closed. The employee would be ineligible to take FMLA+ because the child could attend school in person.
Hybrid voluntary – school offers parents the option between in-school and online study, but the in-school option is limited to specific days. E.g., Parent may elect to allow student to (1) attend in-person study on Monday and Wednesday and continue study online on Tuesday, Thursday and Friday or (2) attend school online for the entire week.For the days that the parent elects not to send the child to school when in-person study is available, FMLA+ is not available because the school is considered open. However, for the remaining days during which the child is offered only online study (Tuesday, Thursday and Friday, in our example), FMLA+ is available.

As employees provide information to employers to substantiate the need to take FMLA+, employers should rely on the accuracy of information reported by the employee to determine whether FMLA+ will be available.