Key Takeaways

• As summer activities for children are cancelled in multiple states, employers should expect a related surge in employee leave requests as employees grapple with unexpected childcare burdens

• Such leave requests may be permitted under the expansive language of the Emergency Family and Medical Leave Expansion Act (E-FMLEA) and the Emergency Paid Sick Leave Act (E-PLSA), which became effective on April 1, 2020

• With the prospect of employees using up E-FMLEA/E-PLSA leave prior to fall 2020, it seems possible that congress will consider expanding the leave entitlements

In March, federal and state governments declared states of emergency and stitched together responsive legislation to address the COVID-19 pandemic. Since then, employers have grappled with vague statutory provisions and regulations and guidance that are difficult to reconcile in some areas. One of these laws, the Families First Coronavirus Response Act (FFCRA), included the Emergency Family and Medical Leave Expansion Act (E-FMLEA) and the Emergency Paid Sick Leave Act (E-PLSA), which became effective on April 1, 2020.

When COVID-19 swept the nation, no one knew how long the pandemic would last. Even now, as businesses begin to reopen in phases across the country, there is little certainty as to how long businesses will stay open and when and if there will be additional surges of COVID-19 cases. Given that E-PLSA provides eligible employees with leave of up to 80 hours and E-FMLEA permits leave for up to 12 weeks, some employees may soon be running out of their allotment.

One of the six triggering factors of E-PLSA, and the only triggering factor for E-FMLEA, is if the employee is caring for their child whose school or “place of care” has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or “place of care,” or the “child care provider” of such child is unavailable, for reasons related to COVID-19. Even though the school year is coming to a close in June, the terms of this leave provision were drafted expansively.

Specifically, the term “place of care” is defined as a physical location in which care is provided for the employee’s child while the employee works for the employer. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before- and after-school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. In certain states (i.e., New York) summer activities of children have been cancelled indefinitely.

Additional, under the FFCRA regulations, an eligible “child care provider” need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child. With such a broad definition, many employees may seek this leave.

Despite these broad definitions, employees who would otherwise be eligible for FFCRA leave are not afforded the leave if they may telework. While this concept makes sense in principle, in application it is problematic because the employer really has no knowledge of what childcare options the employee has. Instead, employers can merely demand the employee attest that he or she cannot telework given their childcare situation.

The FFCRA has a built in sunset date of December 31, 2020. As of the drafting of this alert, no one can say with certainty that the COVID-19 pandemic will have subsided by that date. Additionally, it remains uncertain if and when schools will reopen, and whether that will be in fall 2020 or later. In the meantime, given the expansive definitions of “place of care” and “child care provider,” employers are likely to see more FFCRA leave requests, even though the school year is almost over. With the prospect of employees burning through FFRCA leave prior to fall 2020, it seems possible that congress will consider expanding the leave entitlements.

Employers are well advised to partner with counsel on administering FFCRA leave requests to ensure compliance.

For more information or immediate guidance, contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of our Employment and Labor practice