As the COVID-19 situation continues to wear on, every school district in the country has been forced to make difficult decisions, many of which can easily be perceived as “lose-lose” due to the complexity of the ever-changing COVID regulations. Remote learning is certainly not ideal as it can force parents to stay home from work, and in-person learning comes with the obvious risks of exposing children and teachers to the virus.
Employers are caught in the middle of this issue as they try to understand the Families First Coronavirus Response Act (FFCRA or Act) and how it applies to their employees with school age children at home.
This post is designed to provide some guidance to the millions of employers who now face the dilemma of how to best approach this situation.
In this post, we’ll cover:
- What things CAN you do to better understand the situation that your employees find themselves in.
- What things you must NOT do while trying to make leave decisions because they violate the FFCRA or other regulations.
- Things to consider as you weigh the pros and cons of certain FFCRA-related decisions.
Green Light: Things You CAN Do
If you are an employer or HR administrator who is tasked with making FFCRA leave decisions for employees whose children are starting the school year, the first thing you need to do is understand the specific situation of each employee who submits an FFCRA leave request. Fortunately, there are some questions that you are allowed to ask and other pieces of information you are allowed to request from your employee:
- You are allowed to ask how old the employee’s child or children are. If the child or children are age 15 or older, you can and should require that the employee provide a statement or affirmation that there are special circumstances that cause the older child to need their care. If the employee is unable to make such a statement or affirmation, then you can deny their FFCRA leave if the children are over 15.
- You are allowed to request from your employee the name of their child or children’s school, place of care, or caregiver that is closed or unavailable due to COVID-19. In the case of a closed school, you can contact the school district to confirm plans that the school has made, whether it’s in-person learning, remote learning, or a hybrid option. Remember, FFCRA leave is not available for the parents of a child whose school is open for in-person attendance. If the child is home not because his or her school is closed, but because the parent has chosen for the child to remain home, the parent is not entitled to FFCRA paid leave.
- Some employees may ask about the possibility of bringing their children to the office with them. Depending on the nature of your workplace, this is a possibility that you may want to consider. However, you should consult with an attorney or trusted insurance broker that is familiar with the kind of licensing and insurance that would be required to do this.
Most importantly, try to keep an open channel of communication with your employees. If your employees can see that you are there to support them, they will be much more willing to discuss compromise and alternatives such as only requesting a few hours off each day in the morning or afternoon. Alternatives like this can still allow your employees to get significant work done – which can make a world of difference during these uncertain economic times.
Red Light: Things YOU CANNOT Do
Now let’s talk about the things you must NOT do while considering FFCRA leave decisions for your employees:
- You cannot ask an employee to look for different childcare if their usual provider is unavailable. An employee is entitled to leave if the child’s usual care provider is unavailable due to COVID-19 — they are under no obligation to look for alternatives, and any attempt on your part to require that would be an illegal interference with their right to leave.
- You cannot request FFCRA documentation from an employee until after the first workday of FFCRA leave.
- If an employee with children over the age of 15 provides a statement explaining that there are special circumstances that cause the older child to need their care, you are not allowed to dig any deeper into the situation.
- Independent sleuthing to verify what an employee tells you is not a good idea. Never do anything that might infringe upon your employees’ right to privacy.
Yellow Light: Weighing the Pros and Cons of FFCRA Leave Decisions
When making decisions about approving or denying employee FFCRA requests, always be sure to weight the pros and cons of your decisions.
In some instances, you may be tempted to terminate an employee if they are unable to work and do not qualify for FFCRA leave. Assuming that no other leave laws apply, termination may be an option. However, you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings, so if there’s a way to keep an employee around — even if they need some time off — that is likely better for your bottom line.
Making the determination that a leave request is fraudulent is another situation in which you’ll want to spend considerable time thinking about your next steps. If you feel like you have enough evidence to believe a leave request is fraudulent, you have the option to deny it. However, there is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. Further, you don’t want to discipline an employee who was acting in good faith and simply misunderstood the leave rules.
There are still many gray areas related to the FFCRA. The Department of Labor will be releasing more guidance in the coming days and weeks. Be sure to stop by our blog regularly as we will make future posts that highlight the most important things that employers need to know about the FFCRA.
However, there are things that you CAN do and things that you CANNOT do related to the FFCRA as we’ve discussed in this post.
- You CAN ask certain questions to ensure that your employees qualify for FFCRA leave.
- You CANNOT ask an employee to look for different childcare if their usual provider is unavailable. And never do anything that violates an employee’s privacy.
- As is the case in many aspects of managing your business, take time to weigh the pros and cons of FFCRA decisions. While you may be tempted to try to fight an employee leave request, consider the long-term costs and benefits of doing so.