Back to School and COVID Important Considerations for Employers

As this most unique Summer comes to an end, we head into what will surely be a unique Fall. 

With many parents of children too young to be left home alone scrambling to plan for academic “remote” and “hybrid” schedules that might change from week to week, employers must be aware of legislation enacted earlier this which year mandates FMLA-style leave for parents of children whose school building is closed due to COVID, and their legal obligations thereunder.   

Accommodating Alternative Schedules

In response to the COVID outbreak, Congress passed the Family First Coronavirus Response Act (“Family First Act”) which included the “Emergency Paid Sick Leave Act” and “Emergency Family and Medical Leave Expansion Act” (“EFMLA”).   Both Emergency Leave Acts are currently due to expire on December 31, 2020.

The EFMLA expands the protections of the Family and Medical Leave Act of 1993, (“FMLA”) to include caring for a child whose school or child-care provider is closed or unavailable due to COVID as a condition for which an employee is entitled to take protected and paid leave.    

To be eligible for EFMLA protections, the employee must (a) have been employed by the employer for at least 30 days and (b) must not be able to work remotely or come to work due to their need to stay home with their son or daughter. An employer can request reasonable documentation which demonstrates the need for leave. If the employer allows for the employee to work remotely, the employee would need to demonstrate why they cannot perform their job remotely. Employers are urged to discuss with employees the expected times and hours taken for leave and come to an agreement that accommodates the employee’s need for leave.  For example, an employer can agree to allow an employee working remotely to take two hours of leave time per day to accommodate the responsibilities of caring for a child.

The EFMLA does not require an employer to pay an employee for the first two (2) weeks of leave, which can be taken in hours, days, or weeks. During this two-week period, the employee may be eligible to take paid sick leave as discussed below. Or, alternatively, the employee may elect to use any accrued paid time off. Thereafter, the employee is entitled to up to 10 additional weeks of paid leave at 2/3 of the regular rate of pay, not to exceed $200 per day and $10,000 in the aggregate for the full ten-week period of time.

Furthermore, employers must hold the position of an employee until the employee returns from leave or the time for leave has been exhausted, whichever is first. If during the employee’s leave their position has been eliminated due to economic conditions, the employer must make reasonable efforts to restore the employee to an equivalent position for 12 weeks from the date the employee was to return from leave or their time for leave was exhausted. Given that the EFMLA is newly enacted, economic conditions have not been clearly defined and the application of this exception has not been clarified by the court. However, a reasonable interpretation would suggest its similar conditions as when an employer lays off employees; ie. inability to operate under the COVID conditions, diminished operations, or financial hardship.   

Small businesses with less than 25 employees are exempt from restoring returning employees and businesses with less than 50 employees may be exempt from offering EFMLA altogether by requesting such exemption from the Secretary of Labor.

Accommodating the Need for Paid Leave to Care for a Child

Under the Emergency Paid Sick Leave Act, employers must provide their qualified employees with two weeks of paid sick leave. To be eligible for leave an employee must be (a) employed for at least 30 days prior to requesting leave and (b) need leave to care for their son or daughter whose school or child-care provider is closed or unavailable due to COVID. When eligible, the employee is entitled to the average number of hours the employee works in a two week period at 2/3 of

their regular salary, not to exceed $200.00 a day or $2,000 in the aggregate for the full two week period of time. The average number of hours for a two week period for full-time employees is 80 hours; for part-time employees, it is the average number of hours for a two week period worked over the prior six months.

As with the EFMLA, employers are encouraged to allow employees to use this paid sick leave intermittently even when working remotely is an option for the employee. The employer may request documentation to demonstrate the need for paid sick leave including but not limited to, proof of school or child-care closures. Employers have obligations to inform employees of the availability of this leave but this paid sick leave does not and should not replace or alter any state-specific paid sick leave the employee is entitled to. See below for New Jersey and Pennsylvania specific leave information.

Small businesses with less than 50 employees may be exempted from allowing qualified employees from taking paid sick leave under the Family First Act only when the basis is to care for a child whose school or child-care provider is unavailable. In order to qualify for this exemption, the small business must establish when leave was denied that providing paid sick leave to employees would jeopardize the ongoing viability of their business. 

Tax Credits to Reimburse Employers for Paid Leave

Employers are entitled to a dollar-for-dollar quarterly credit against FICA payroll taxes for paid sick leave and extended FMLA. 

Applicable State Laws for Paid Sick Leave

Under New Jersey law, all employers must offer paid sick leave to employees to be used to care for themselves, care for a relative, or based on a school or child-care closure. Employees earn 1 hour of sick time for every 30 hours worked up to 40 hours maximum per year. When leave is requested for an eligible reason, the employee is to be paid their full rate of pay and the employee may use the leave-in increments. The employer may ask for reasonable documentation to justify the request for leave which is longer than 3 days. 

Pennsylvania does not require employers to pay employees sick leave. Therefore, employers in Pennsylvania must adhere to the Family First Act paid sick leave requirements.

Continued Awareness of Possible Exposure

As recommended by the CDC, employers are to assess and put procedures in place to control the exposure of COVID among its employees. These procedures can include temperature checks, mandatory the appropriate PPE, additional sanitation measures, and inquiring about any possible exposure to employees. These procedures are to be tailored to your specific business and should be used in combinations that minimize exposure. 

With children and parents having alternating schedules, it is important to continue to check in with all employees about the status of their exposure to COVID or to persons with COVID. An added layer of possible exposure will be due to the employee’s spouse and/or child being exposed at school. It will be important to monitor local schools announcing COVID-related closures. Employers should not take liberties to invade the privacy of their employees but rather incorporate this potential risk in the overall assessments made. Employers should employ the necessary paid sick leave and other measures to ensure safety for all employees.