On Friday, July 17, Governor Newsom announced plans for how California schools would be permitted to operate for the 2020-2021 school year. Schools located in counties that are on the state’s Monitoring List for COVID-19 cases must not physically open for in-person instruction until the county has come off the Monitoring List for 14 consecutive days. As of July 20, the Monitoring List includes Fresno, Tulare, Kings, Merced, and Madera counties, among several others. Even when a school is allowed to reopen, positive COVID cases in students or teachers could cause the campus to close again.
Ever since schools were closed in mid-March, most parents have been nervously awaiting news about how reopening would be handled, and the state-wide directive has been met with relief by some families and disappointment by others. Wide-ranging views about the health risks aside, the fact that our kids will most likely continue to be home for the next several weeks or months, and the responsibility to provide instruction and homework oversight, is likely causing a great deal of anxiety and stress for many on your staff.
So what is an employer to do? How can you demonstrate understanding and flexibility, while ensuring that work gets done effectively? With the start of the school year 3 to 4 weeks away, now is a great time to talk with employees and agree on a plan, which may include one or more of the following options:
Leaves of Absence Under the FFCRA
– Effective April 1, 2020, the Families First Coronavirus Response Act created a new qualifying reason for leave under the Family Medical Leave Act (FMLA). Under this FMLA Expansion (FMLA-E), an employee who has been employed for at least 30 days is eligible to take up to 12 weeks off work to care for a son or daughter whose school or day care is closed or unavailable. The first ten workdays of FMLA-E is unpaid, and an employee may choose to use available emergency paid sick leave or vacation/PTO. EPSL used for this purpose is paid at 2/3 the employee’s regular rate of pay, up to $200 per day.
– After the first ten days, leave is paid by the employer at 2/3 the employee’s regular rate of pay, up to a maximum of $200 per day. Health insurance benefits must be maintained in the same manner as if the employee were working.
– If you are a covered employer under traditional FMLA, an employee is not entitled to an additional 12 weeks of leave. Time off for other qualifying reasons in the current 12-month period will reduce his/her ability to take FMLA-E leave.
– Technically, FMLA-E is to be used when there is no other suitable person available to care for the child(ren), not for when the parent wants to deliver a preferred homeschool experience. If another parent, grandparent, or care provider is available, assisting with distance learning may not be a qualifying reason for leave.
FMLA-E applies to employers of fewer than 500 employees, but healthcare organizations and employers of fewer than 50 employees may be allowed to exempt themselves from providing this leave. We recommend seeking legal counsel and giving employees very clear notice prior to denying a request for time off.
If your employee is able to work from home, a continuous or intermittent teleworking arrangement may be a positive solution.
– Be clear about scheduling, and your expectations for communication and deliverables. It is unlikely that your employee will be able to put in a full traditional work schedule while also facilitating distance learning for his/her child(ren). Everyone should be on the same page about how many hours will be devoted to work, and what should be accomplished each day.
– Prepare a teleworking agreement to document the approved schedule, use of company-owned equipment, privacy and confidentiality policies, timekeeping and meal period reminders, etc.
– Intermittent FMLA-E may be used for the normally-scheduled hours that the employee will not be working.
Reduced Work Schedules or Discretionary Leaves
If an employee has already exhausted his/her time off under FMLA-E, or teleworking is not a realistic option, a short-term schedule reduction or leave of absence may be necessary. These situations may impact the employee’s eligibility for health insurance and other benefits, so be sure to have clear discussions prior to beginning the arrangement.
Creative Shared Instruction
In some neighborhoods, several families are creating a rotating schedule of care and school instruction for elementary-age children, allowing parents to focus on work or other responsibilities on their “off days.” If some of your employees have children in the same school district, they may be able to get creative with a plan that allows them to minimize time away from the office. (Of course, safety precautions such as masks and social distancing should always be implemented.)
We understand that this topic is a tough one to navigate for employees and managers alike. Contact one of our Consultants if we can assist you in determining the best approach for your team. 559-431-8090.