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“Back to School” During COVID-19: FFCRA Leave and Other Considerations

August 24, 2020  by  Jill Dvorkin
Category:  Leave Policies COVID-19

“Back to School” During COVID-19: FFCRA Leave and Other Considerations

Editor’s note: The requirement to provide FFCRA leave to qualifying employees expired December 31, 2020.

However, the federal Coronavirus Response Relief Supplemental Appropriations Act (CRRSA), signed December 27, 2020, allowed employers to voluntarily provide FFCRA leave through March 31, 2021 for employees who have not yet exhausted their FFCRA leave.

The American Rescue Plan Act, signed March 11, 2021, allows employers to voluntarily provide FFCRA leave through September 30, 2021, allows employers to add 10 additional days of FFCRA leave for use between April 1, 2021 and September 30, 2021, and adds a new qualifying reason related to COVID-19 diagnostic tests and vaccinations. In a change from the original federal legislation, local governments are eligible for federal tax credits any voluntary paid leave provided under ARPA between April 1, 2021 and September 30, 2021 only. For more information, see our blog post American Rescue Plan Provides More Relief to Local Governments.

As fall is approaching and the COVID-19 pandemic rages on, many of us are anticipating the challenges of working and schooling from home. Some school districts in the state have already announced that their students will be exclusively distance learning in the fall while others are grappling with whether to do a hybrid approach of classroom and remote learning. Others may be offering an online option even if the school buildings are open to students in some capacity. Regardless, “back-to-school” will look much different this year for all students and families.

For local government employers, this will likely mean that some employees will seek leave under the Families First Coronavirus Response Act (FFCRA) or other local and state leave policies to accommodate school-aged children at home. It may also mean that employers will want to amend personnel policies to allow more flexibility to employees with children impacted by school closures.

FFCRA Leave as It Applies to School Closures and Childcare

The FFCRA allows employees to take up to 12 weeks of paid and protected leave for various qualifying COVID-19-related conditions, including when they cannot work because schools are closed or childcare is unavailable due to the pandemic. The benefits took effect on April 1 and are available through December 31, 2020. The paid leave available under the FFCRA is supplemental to any accrued leave or other leave available under state and federal law. In April, my colleague Linda Gallagher wrote a helpful blog post summarizing the FFCRA, including the types and amount of leave available, qualifying conditions, and who is eligible to take the paid leave.

A federal district court in New York issued a decision earlier this month invalidating several portions of the DOL rules implementing the FFCRA. It is not yet clear whether the decision will have nationwide effect or only impact New York state. This blog post and podcast include a good analysis of the decision and possible implications. Where applicable, I will make note of how the ruling could impact the scenarios below.

When is school considered closed?

School is considered closed for purposes of determining leave benefits under the FFCRA if a school is not open for physical, in-person attendance. Stated another way, if a school is only offering remote/online learning opportunities, it is considered closed — see the United States Department of Labor’s (DOL) FFCRA FAQ #70. See also: What type of leave is available to an employee who cannot work due to school closures? for a detailed overview of leave options. 

Some schools may be offering in-person instruction on a part-time basis, with students rotating days where they are in the classroom or at home. In these instances, school is considered closed on the days when an employee’s child is assigned to distance learn even if other students may be present at the school based on an alternating schedule.

What about intermittent leave?

In those instances where students may be distance learning part-time, employees may ask their employer to take leave intermittently (e.g., two or three days per week). Under the DOL rules an employee can take FFCRA leave intermittently if the employer agrees. See Final Rule at 19353 (§§ 826.50(a)-(c))

This DOL requirement for employer approval of intermittent leave was ruled unlawful in the New York lawsuit, as related to school closures and certain other qualifying conditions. The court ruled that an employee could opt to take leave under FFRCRA intermittently even if the employer did not approve taking leave in that manner. Regardless, the rules encourage employers to be flexible, so employers should consider erring on the side of granting intermittent leave.

So, assuming that an employer grants an employee’s request to take intermittent leave (or assuming that the New York ruling has nationwide effect), an employee could choose to take leave a couple days a week or as needed to accommodate a child’s school schedule.

What if distance learning is optional?

If a school is physically open but a parent or guardian elects to keep their child at home, FFCRA leave is only available if another qualifying condition applies. This FFCRA-related blog post summarized the issue well:

If a school is open for in-person learning and a child is distance learning by choice through an online option the school offers, the child's parent is not entitled to FFCRA leave. In this case, the school is not closed; its physical location is open, and the parent is choosing a remote learning option. Therefore, the employee does not have a qualifying reason for childcare leave under the FFCRA. Note, however, that certain parents in this scenario still might qualify for FFCRA leave if the child is distance learning upon the advice of a health care provider to self-quarantine because of concerns related to COVID-19.

What documentation is required under FFCRA?

As outlined in DOL’s FFCRA FAQ #15, if an employee seeks leave because a child’s school is closed, an employer should collect the following information:

  • The name of your employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave;
  • A statement from the employee that he or she is unable to work because of the reason;
  • The name of the child being cared for;
  • The name of the school, place of care, or childcare provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

The IRS has slightly different documentation requirements for school closures (summarized in this guidance) but this is only applicable for businesses/organizations seeking tax credits to offset the costs of leave. Local governments are not eligible for these tax credits.

Here are two examples of local government FFCRA leave request forms:

Flexibility in Personnel Policies

Below are a few examples of policy changes that could make work/life balance potentially easier for employees with school-aged children at home.

Do your telework policies accomodate working at home with children?

For agencies that allowed telework prior to the COVID-19 emergency, personnel policies often prohibited an employee from teleworking while dependent children were present and no other primary caregiver was available. Since the COVID-19 pandemic began, some agencies (e.g., King County) have amended these policies in acknowledgment of the new reality faced by working families. If it hasn’t already, your agency may want to consider temporarily (or permanently) amending its teleworking policies to remove such a prohibition. Visit our COVID-19 Operations and Personnel Issues webpage for examples of COVID-19-specific telecommuting policies. See also this FAQ: What are the best practices for implementing a telecommuting program?

What about flexible hours?

Since parents or guardians of school-aged children may need to care for them during typical work hours, agencies could also remove or amend policies that prescribe strict working hours for its employees. For example, if certain tasks do not need to be completed during “office hours,” policies could offer flexibility to employees to do their work as their schedule permits. This may mean developing individualized work plans for employees that take into consideration their specific situations.

Other Creative Solutions?                          

If your agency has implemented family-friendly policies in response to the current COVID-19 circumstances, please email me and we can add them to our Coronavirus (COVID-19) Resources for Local Governments webpages.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Jill Dvorkin

Jill joined MRSC as a legal consultant in June 2016 after working for nine years as a civil deputy prosecuting attorney for Skagit County. At Skagit County, Jill advised the planning department on a wide variety of issues including permit processing and appeals, Growth Management Act (GMA) compliance, code enforcement, SEPA, legislative process, and public records. Jill was born and raised in Fargo, ND, then moved to Bellingham to attend college and experience a new part of the country (and mountains!). She earned a B.A. in Environmental Policy and Planning from Western Washington University and graduated with a J.D. from the University of Washington School of Law in 2003.



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