How to Address Rising Back to School, Childcare Leave Requests

Girl doing schoolwork at home
XpertHR, 15th September 2020
David Weisenfeld

While a new school year has started, it’s one unlike any we have ever seen before as many working parents grapple with the challenges of hybrid or 100% remote learning amid the coronavirus pandemic.

Your child might be 10 feet away on a virtual lesson asking for help while you frantically try to balance that with an hour-long Zoom meeting at work. Under these circumstances, many working parents feel they have no choice but to seek leave under the Families First Coronavirus Response Act (FFCRA).

There is no question the landscape differs from what employees dealt with in the first few months of COVID-19 when so many schools and workplaces were fully remote. That’s because in some cases, parents and caretakers have jobs where their employers – unlike in the spring – have physically reopened.

So, it’s no surprise that employers are receiving increased leave requests amid back-to-school challenges under the FFCRA, which applies to private employers with fewer than 500 employees. But not all of these requests are covered by the law.

Many school districts across several states are now taking a hybrid approach where children may be in school for four hours per day every other day and have virtual learning from home for the remaining time. With others, children spend two or three full days in school but are fully remote on the others.

On a recent XpertHR podcast, Littler employment shareholder Jeff Nowak discussed the difficulties working parents and employers are facing. Nowak, one of the nation’s leading leave law experts, said his phone is ringing nonstop with questions about how employers should properly administer leave under the FFCRA.

During the summer, XpertHR surveyed HR professionals across the US about the most challenging issues employers are experiencing, and back-to-school leave issues headed the list.

But what happens if school is partially open? The US Department of Labor (DOL) recently published guidance directly related to the reopening of schools.

What the DOL has said, Nowak notes, is that if a child has the option of attending school in person (even if only for a half-day), their school is not closed during that time. “Therefore, on those days when your child is in person at school, the FFCRA is not available to you to take leave,” said Nowak.

The fact that a parent may have legitimate safety fears about sending their child to school amid COVID-19 is not enough, even if they live in an area with elevated rates of transmission.

“This isn’t a situation where the parent gets to decide when the FFCRA applies,” he added. “Parents may have legitimate, reasonable bases for keeping their kids home. That’s their choice, but they can’t at the same time avail themselves of the protections under that law.”

In the springtime, Nowak noted that employers were just getting up to speed with the FFCRA and were trying to process questions surrounding:

  • What the law means;
  • What their leave obligations are; and
  • How they transition their workforce to a largely work-from-home model.

Employers also didn’t necessarily require employees to take leave during this period and instead worked out flexible arrangements that didn’t start running the clock on FFCRA leave.

But fast-forward a few months later and, Nowak says, there is a bit of a tug-of-war going on as some employers are increasingly asking whether:

  • Employees really need the leave;
  • There is a co-parent who could care for the child; or
  • There is a grandparent that could help.

Nonetheless, Nowak cautions that employers must still tread carefully. This pandemic will not go on forever. And that leads him to assert, “If an employer seeks to become an employer of choice, they’ll identify a solution to support their employees as they are obligated to attend to childcare needs.” Thus, he encourages employers to think creatively to support working parents.

For more insights from Nowak, check out “Back to School Leave Issues Bedeviling Employers.”