COVID-19 Update: The Use of Expanded FMLA Leave for Distance Learning

New legal guidance indicates that an employee may be eligible to use up to 12 weeks of Expanded FMLA to facilitate the distance learning needsof his/her child(ren.)

With most California schools unable to begin on-campus instruction anytime in the near future, parents are struggling to make plans for children’s distance learning needs. Navigating online classroom time, other digital resources, and homework assignments presents a significant challenge for kids and parents alike.

It was previously viewed that the ability to use Expanded FMLA to care for a child whose school or day care is closed did not extend to the desire to provide educational support. However, the U.S. Department of Labor (DOL) seems to give parents the ability to define “care” for themselves. In its ever-growing list of FAQs, the DOL states that in order to use Expanded FMLA, the employee must provide:

• The name of the child being cared for;

• The name of the school, place of care, or child care provider that has closed or become unavailable; and

• A statement that no other suitable person is available to care for the child. (See FAQ #15)

There is no clear definition for the term “suitable” so a parent may reasonably determine that “suitable care” includes the ability to oversee and support distance learning. A grandparent or other person whose care has been sufficient during the summer may no longer be viewed as suitable once the school year begins.

Further, the DOL gives a fairly broad definition of “place of care,” stating, “Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.” (See FAQ #67) This indicates that “care” may involve more than simply physical attention, supervision, and general safety.

We understand that allowing several employees to be off work for this purpose could significantly impact your business operations. The FFCRA does allow an employer of fewer than 50 employees to exempt itself from providing Expanded FMLA leave “when doing so would jeopardize the viability of the small business as a going concern.” (See FAQ #58) Legal guidance is recommended to determine whether a small business can lawfully exclude itself from providing leave. Health care providers and emergency responders may also exclude themselves. (See FAQs #56 and #57)

The DOL states that employers and employees are encouraged “to collaborate to achieve flexibility and meet mutual needs.” Intermittent leave, reduced work schedules, and telework arrangements may be options for allowing your employees to provide the desired care for their children while also accomplishing the needs of your business.

We understand how complicated and confusing these decisions can be, and you’re not in this alone! Contact one of our certified Consultants to discuss the specific scenarios being reported by your employees.