Navigating work absences due to closed schools

Crowe & Dunlevy

As the school year begins, Oklahoma’s banks once again face the challenge of accommodating the need for employees to be home to care for school-age children due to the negative impacts of the COVID-19 pandemic.

This article focuses on the relevant paid leave mandates of the Families First Coronavirus Response Act, the challenges caused by the varying learning approaches taken by school districts, and business impacts that may be caused by absent employees.

Families First Coronavirus Response Act
The FFCRA requires employers with fewer than 500 employees to provide qualifying employees with up to 80 hours of emergency paid sick leave and up to 12 weeks of expanded family leave, though businesses with fewer than 50 employees may be exempt from providing EFL. While employees can qualify to use EPSL for multiple reasons, this article focuses on the use of EPSL and EFL to care for children due to school or day care closures.

An employee may use EPSL from the first day of employment. The total amount of EPSL available is capped at 80 hours, though the amount given depends upon the employee’s typical or anticipated work schedule. (The U.S. Department of Labor regulations include specific formulas for determining the number of hours to offer.)

Employees may begin to use EFL after 30 days of employment. EFL can only be used to care for a child due to school or child care closure or unavailability. The amount of available EFL is decreased by any traditional FMLA time the employee has already used within the employer’s FMLA year.

EPSL is paid time-off. The first two weeks of EFL are unpaid, and the subsequent 10 weeks are paid. That being said, EPSL and EFL may be used concurrently, meaning an individual has up to 12 total weeks of paid leave available under the FFCRA. When an employee takes these leaves to care for a child, the employee should be compensated at two-thirds of his typical hourly rate up to a maximum of $200 per day and $12,000 in total. Such leave may be taken continuously or intermittently.

To substantiate the need to use EPSL or EFL, the employer should require appropriate documentation. To qualify for the IRS tax credit to cover the costs of EPSL and EFL, the documentation should include the child’s name; the name of the school, place of care, or child care provider that has closed or become unavailable; and a representation that “no other suitable person” will be caring for the child during the leave.

Finally, absent congressional intervention, the FFCRA will expire Dec. 31, 2020, meaning that any unused EPSL or EFL will no longer be available to qualifying employees.

FFCRA and different approaches taken by schools
Navigating these paid leave requirements is complicated by school districts’ varying approaches. Schools operating only virtually are considered “closed.” Schools operating on a rotating system, where students alternate between virtual and in-person learning, are considered closed only on those days when the child is not permitted to be physically present. In this scenario, employees may need to use leave intermittently for those days when their children are at home doing virtual classes. Finally, where physical presence is permitted but parents choose virtual learning or homeschooling, the school is not considered “closed,” and the parents would not qualify to use EPSL or EFL.

Managing the business impact
Planning for employee absences due to COVID-19’s disruption of the school year will be challenging. It is likely to be made more so by the fact that schools may change their approaches during the school year – switching between in-person, rotations and virtual learning – depending upon community spread in their areas and outbreaks among students and staff. Banks facing ongoing absences due to these issues – not even taking into account the direct impact of COVID-19 outbreaks amongst employees – may be forced to consider closing locations or lobbies, reducing hours of service, providing additional services remotely or through drive-thru lanes, or other creative approaches.

The foregoing should not be understood as, or considered a substitute for, specific legal advice. For inquiries, please contact Michael W. Bowling, or another licensed attorney.