Employee’s Leave Rights When Schools Are Closed: Where We’ve Been, Where We Are, and Where We’re Going

As Labor Day passes and school districts welcome back students to virtual and/or hybrid learning environments, parents are faced to consider childcare issues. In turn, employers are forced to evaluate their needs in connection with working parents leave requests.

New Jersey in particular has left reopening plans to each of its 555 school districts, subject to general state guidelines. Businesses, whose employees usually hail from multiple districts, now must process leave requests for a seemingly infinite combination of individual situations. Many of our clients turn to us with questions about their obligations and the best way to handle childcare-related leave requests.

This spring, Congress passed the Families First Coronavirus Response Act (FFCRA) which requires certain employers to provide up to 80 hours of paid emergency leave (rates and caps vary with the reason for leave) for certain defined reasons related to COVID-19. In addition, FFCRA expands the federal Family and Medical Leave Act (FMLA) to allow employees up to 12 weeks of job-protected leave to care for a child who is at home due to a COVID-related school closure—among other reasons.

Employers may choose to exempt employees from FFCRA benefits if they are “health care providers”, but beware

Many of our Firm’s clients are medical practices, pharmacies, and medical laboratories. We are frequently asked about the “health care provider” exception. FFCRA allows employers to exempt their employees from the benefits listed above if the employee is a “health care provider”. Until recently, that definition encompassed an extremely expansive range of employees. On September 16, 2020, in response to a New York federal court ruling, the U.S. Department of Labor (USDOL) issued a narrower definition. In addition to physicians, dentists, clinical optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, and physician assistants, the revised definition includes:

Any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care . . . [and] . . . employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

An employee’s duties must be necessary to providing patient care, not merely duties that “could affect” the provision of healthcare services. The rule specifically identifies IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

Our clients will immediately notice “records managers” and “billers” identified above. We note that this definition was written for employers in all industries, not specifically those in the medical field. Thus, certain employees with these titles may fall under the exemption if their positions are in fact “necessary to the provision of health care services”. This analysis is highly fact-dependent, and we encourage any employers with questions about these employees to contact us for individually tailored guidance.

Even if employers may exclude certain employees, USDOL cautions employers to use the exemption “judiciously”. In addition, businesses need not foot the entire cost of granting leave; FFCRA provides businesses immediate or accelerated dollar-for-dollar reimbursement through payroll tax credits for all qualifying wages and health insurance costs paid under FFCRA for qualified leave.

New Jersey employers, school closings, and employee leave requests

Even for New Jersey employers who might be exempt from FFCRA, employees may still be entitled to take childcare-related leave under state laws. First, an employee may use their accrued sick leave under New Jersey’s Earned Sick Leave law. Next, New Jersey’s Family Leave Act (NJFLA) was recently expanded to include up to 12 weeks of unpaid, job-protected leave to employees who are required to provide childcare due to a pandemic-related school closure. Unlike FFCRA, there is not a health care provider exception. However, employers and employees must fit certain criteria to be subject to NJFLA.

So which situations qualify for NJFLA leave?

Unfortunately, this is not yet clear. Each school district in the state has their own fall semester plan. The New Jersey Department of Labor and Workforce Development (NJDOL) has not issued clarifying guidance despite the school year being underway. Until we receive more guidance from the state or courts, we are generally advising our clients to follow USDOL’s FFCRA guidance, which we interpret as the following. Assuming the employer and employee are otherwise subject to NJFLA:

  • If the child’s school is physically closed to that child on a particular day, then the leave qualifies. In other words, the child must not be allowed to physically go to school on a particular day.
  • If the school district offers options including 100% in-person instruction (i.e., the school is open to the student), and the parent-employee instead elects distance learning or a hybrid, the leave does not qualify because the school is not physically closed to that child.
  • The employee must provide the employer with the name and age of the child being cared for, the name of the school that is closed, and a representation that no other person will be providing care for the child.

What about employees who telework?

Employers must recognize that USDOL guidance suggests that employees who teleworked over the summer with children home may still take qualifying childcare-related leave discussed above. The fact that an employee successfully teleworked with children home is a prohibited basis for denial of a later leave request.

What is next?

FFCRA is set to expire on December 31, 2020. Unless extended or replaced, we do not yet have a complete understanding of employers’ obligations during the spring semester. Finally, we look to NJDOL for guidance specific to New Jersey’s Family Leave Act. Businesses must understand that this area of law is rapidly changing weekly and must always comply.

How Frier Levitt Can Help

Frier Levitt’s skilled employment attorneys are on the cutting edge of legal developments and are able to help clients navigate these difficult times. Since there is no “one size fits all” solution for every business. Employers should consult a skilled employment attorney, such as one at Frier Levitt, for individualized advice. Call Frier Levitt today to set up a consultation.

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