Navigating Leave-Related Issues Upon Re-opening

As districts create reopening plans, school leaders are confronted with a myriad of questions regarding the return of staff members.

When the Families First Coronavirus Response Act (FFCRA) was passed, most districts were already shut down and leave issues were not at the forefront of the minds of school leaders. As staff return to school, districts will need to understand the FFCRA, how it interacts with preexisting laws, and what conversations need to occur with staff members.

This post is an effort to answer the questions we have been receiving over the last few weeks and to provide general guidance about how to proceed when personnel issues arise with your staff members.

First things first, some background information about the new law:

  • What is the Families First Coronavirus Response Act (FFCRA)?
    • This Act requires certain employers to provide employees with emergency paid sick leave (EPSL) or emergency family and medical leave (EFML) for specified reasons related to COVID-19.
    • It applies to public agencies regardless of the number of employees. It is effective from April 1, 2020 through December 31, 2020.
    • If an employee meets the requirements to qualify for leave, the District is required to continue health insurance for the employee while on leave.

 

Here is a table that might help districts visualize the types of leave that are available and what reasons create an entitlement to the leave:

  • Are we required to disburse information and notify employees about these new kinds of leave?
    • Yes, all employers covered by FFCRA’s paid provisions are required to post in a conspicuous place a notice explaining FFCRA’s paid leave provisions and how to file a complaint alleging a violation of FFCRA.
    • Districts can meet this requirement by posting the FFRCA Notice Poster online or directly mailing/e-mailing it to employees.

 

  • My employees may not know about the new types of leave, even though we have met the notice requirements. If they don’t actually request the leave, do we have to provide it?
    • The law itself does not specifically require that the District inform an employee that their leave might qualify BUT if an Employee tells the District the reason for missing work and the reason provided qualifies for FFCRA leave, then the District should treat it as such leave. (The Department of Labor is interpreting this new law liberally, especially in areas where the law does not specify a course of action.)

 

With those basics out of the way, let’s delve into the types of leave that may be available and how to walk through particular issues. If an employee notifies the District that they are unable or unwilling to come to work, the first question the District must ask is “Why?” What follows are some likely scenarios and related frequently asked questions.

Second grade teacher Sam informs you that she has Type 2 diabetes, is high risk, and cannot return to in-person teaching in the fall.

  • Sam will qualify for EPSL only if her healthcare provider has advised her to self-quarantine for reasons related to COVID-19.
    • The following information is required from Sam to process and document EPSL:
      • Employee’s name;
      • Date(s) for which leave is requested;
      • Qualifying reason for the leave;
      • Oral or written statement that the employee is unable to work because of the qualified reason for leave; and
      • The name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19.
    • The District will then have to provide two weeks of EPSL.
  • What happens when that leave expires?
    • Sam may elect to take her District-provided leave, in accordance with District policies.
  • What happens if Sam runs out of District-provided leave?
    • If Sam’s healthcare provider continues to advise self-quarantine and/or other precautionary measures, the District needs to engage in the interactive process under the ADA to determine whether reasonable accommodations can be provided to Sam in order for her to perform the essential functions of her job.
    • Note: This MAY include a period of unpaid, job-protected leave as a reasonable accommodation if it is not possible or reasonable for the District to provide accommodations in the work environment.
      • The District is not required to provide an unlimited amount of unpaid job-protected leave or leave for an undetermined period as an accommodation.
    • A few additional notes: This could be applicable to any underlying health condition that places an employee at high-risk for COVID-19. It would be appropriate for the District to follow this process regarding any such underlying condition that may be a disability under the ADA.
    • Once an employee has used 2 weeks of EPSL, those 2 weeks are not available again, even if the employee has a different triggering event, such as actually contracting COVID-19.
    • It is unlikely, in this scenario, that Sam would be entitled to take traditional FMLA leave. For other chronic serious health conditions however, it is possible that traditional FMLA leave might apply. This will have to be determined on a case-by-case basis. The District may wish to err on the side of caution and provide FMLA paperwork to Sam to assess eligibility.

 

Casey, a nutrition services employee in the District, lives with his mother who is 82 years old. Casey does not feel comfortable coming to work due to the fear of bringing COVID-19 home and possibly making her ill.  

  • Casey will qualify for Emergency Paid Sick Leave (EPSL) only if he is required to “care for” his mother AND his mother’s healthcare provider has advised her to self-quarantine for reasons related to COVID-19.
    • The District is permitted to inquire as to the name of the health care provider who has advised Casey’s mother to self-quarantine, but nothing more.
    • The District will have to provide two weeks of EPSL.
  • What happens when that leave expires?
    • Casey may elect to take his District-provided leave, in accordance with District policies.
  • What happens if Casey runs out of District-provided leave?
    • Unless Casey qualifies to take FMLA leave, which is unlikely under the facts set forth above, then there is no additional leave available for Casey to take. The District will need to determine next steps regarding the status of Casey’s employment if he refuses to return to work.

 

Victoria, who works in Central Office as the payroll coordinator, contacts the District to inform you that she has been working from home up until now and wants to continue to do that because she doesn’t believe that it is the right time to reopen school. She does not have an underlying health condition, but is in her 60s, which the CDC has indicated puts her at higher risk.

  • Victoria does not qualify for EPSL, EFML, FMLA, or leave as an accommodation for a disability.
  • The District may consider the following options:
    • Attempt to take additional safety precautions for Victoria in terms of her workspace and schedule in order to alleviate concerns sufficiently to allow her to return to work on-site.
    • Allow Victoria to continue to work from home, given the nature of her job duties, if she can perform all the required functions of her duties at home. Note that if the District does allow for this, then the decision will have set precedent regarding other work-from-home requests made by similarly situated employees.
    • Allow Victoria to take her District-provided leave, in accordance with District policies, and direct her to return to work upon the expiration of such leave. If she refuses to return to work, the District may elect to move with disciplinary action, including separation, following the District’s policies for such action.

 

District employee, Craig, informs HR that he must care for his cousin who has been advised by a health care provider to self-quarantine and is unable to meet their own daily needs. Does this qualify Craig to take EPSL, since he is caring for an individual who has been advised to quarantine?

  • It depends. An “individual” means:
    • An employee’s immediate family member;
    • A person who regularly resides in the employee’s home; or
    • A similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.
  • An individual does not include someone with whom the employee has no personal relationship. Also, the employee must be “unable to work” meaning the employee cannot perform work at the District or by telework (e.g. the employee cannot even come in outside of normally scheduled hours).
  • If Craig meets this requirement, he is eligible for EPSL.
  • Assume Craig is eligible for EPSL and informs the District that he and his spouse are “splitting” the duties to care for his cousin. Can Craig take EPSL on Monday, Wednesday, Friday, and report to work on Tuesdays and Thursdays, and spread out his two weeks of EPSL?
    • Employees cannot use intermittent leave and must use permitted days of leave consecutively until the employee no longer has a qualifying reason.

What if a District employee does not use all two weeks of EPSL and needs COVID-related leave again later?

Example: Stephanie, a teacher, has a son who tested positive for COVID-19. She takes one week of EPSL to care for her son while he is sick, and her spouse cares for the child thereafter. When Stephanie returns to work, she has one week of EPSL remaining. A month later, Stephanie’s daughter tests positive. She may take the remaining week of EPSL to care for her daughter but will have exhausted her available EPSL at that point and will have no more available for the remainder of the calendar year.

  • If the employee does NOT use all available hours of EPSL, and the employee has another qualifying reason to take EPSL, they are entitled to use the remainder of their EPSL leave.
    • Only the amount of leave used may be counted toward the employee’s leave entitlement. An employee’s prior use of EPSL will impact the amount of Paid Sick Leave that remains available to the Employee.

 

A staff member comes to their supervisor to report that they are experiencing symptoms of COVID-19 OR that they have been in recent, close contact with an individual who has tested positive for COVID-19. What steps should the District take?

  • If the employee is experiencing symptoms, the District should direct the employee to get tested.
    • What symptoms are we looking for?
    • Place the employee on EPSL during this time. The employee qualifies for EPSL because they are “seeking a diagnosis” for COVID-19.
  • What if the employee is experiencing symptoms, but they are not seeking a diagnosis?
    • The employee must be taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19 to qualify for EPSL.
  • What if the employee went to the doctor; however, the doctor did not test for COVID-19. Does this employee still qualify for EPSL?
    • Once it is determined the employee will not be tested, the employee is no longer seeking a diagnosis and thus does not continue to qualify for that reason. In this situation, most likely the doctor will advise to self-quarantine thus triggering EPSL for a different reason. If the doctor does not to advise to self-quarantine, the employee could also reach out to the local health department to see if they advise the employee to self-quarantine.
  • If the employee is NOT experiencing symptoms, but was in recent close contact with an individual who tested positive, direct the employee to contact the health department or their medical provider to seek advice about next steps:
    • If the health department or medical provider advises the employee to get tested, place the employee on EPSL, pending the outcome of the test.
      • If the test is positive, the employee will be advised to self-quarantine, and will qualify for EPSL.
    • If the health department or medical provider advises the employee that testing is not necessary due to lack of symptoms, but advises the employee to self-quarantine, place the employee on EPSL.
    • If the health department or medical provider advises the employee that neither a test nor self-quarantine is necessary due to the lack of symptoms, the District can:
      • Allow the employee to continue to work and monitor for symptoms.
      • Send the employee home to telework for a period of time if telework is an option.
      • Consider whether to send the employee home for a period of time:
        • The District cannot require the employee to use EPSL leave under this circumstance.

 

District employee, Tony, has tested positive. What are our next steps as a District?

  • Place Tony on EPSL.
  • Take steps outlined in your Re-entry Plan regarding a positive test protocol.
  • Work with the health department on necessary steps regarding contact tracing.
  • Craft a statement for stakeholders to notify them of a positive case and the steps the District will be taking related to the positive case. Ensure that this statement does not identify Tony to protect the confidentiality of health information.
    • Consider working with the local health department to draft this statement, so stakeholders know what the District is doing in conjunction with the health department regarding the positive case, AND so stakeholders are aware of what the health department advises individuals who may have had contact or who are experiencing symptoms.
  • If Tony is medically unable to return to work after the 2 weeks of EPSL, the District should:
    • Consider whether he may qualify for FMLA leave because of a serious health condition and provide the necessary paperwork for FMLA.
    • Allow Tony to take District-provided leave with or without FMLA leave running concurrently, in accordance with District policies.

 

A local daycare had a child test positive for COVID-19. As a result, the daycare closes for three weeks, leaving one of your teachers without childcare and unable to report to work. What are the District’s next steps?

  • Determine if the teacher can telework while at home caring for the child.
    • If so, no leave is necessary. Assign the teacher appropriate job duties to be completed while working from home, and do not reduce compensation or days of available leave.
  • If the teacher is unable to work from home, or if that is not an option for the District, then the teacher is entitled to both Emergency Paid Sick Leave AND Expanded FMLA leave.
    • Request the following documentation from the teacher:
      • Employee’s name;
      • Date(s) for which leave is requested;
      • Qualifying reason for the leave;
      • Oral or written statement that the Employee is unable to work because of the qualified reason for leave;
      • The name and age 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 representation that no other suitable person can care for the child during the period for which the employee takes EPSL/EFMLA.
    • The first two weeks of EFML is not required to be paid by the District:
      • The teacher may elect to take two weeks of EPSL during the first two weeks and receive 2/3 compensation during that period of time; OR
      • The teacher may elect to use District-provided leave and receive 100% compensation during that period of time, if such leave is available to the teacher.
    • The third week of daycare closure, the District should compensate the teacher at 2/3 pay.
    • When the teacher returns, she will have 9 remaining available weeks of EFMLA. This time ALSO counts against her regular FMLA leave total for the school year.
  • The teacher requests to take the first week off and the third week off, explaining that her spouse will cover the second week. Does the District have to allow this intermittent use of leave?
    • No, the District is not required to allow her to take EFMLA intermittently, but can permit it.
  • After three weeks, the teacher returns to work. What if the daycare has another positive case causing it to shut down for a second time? Can the teacher go back on EFMLA?
    • Yes, the teacher can take another period of EFMLA leave.
    • But, I thought you just said it couldn’t be taken intermittently?
      • That’s true, but when there is a new qualifying reason for leave, then the leave isn’t considered intermittent.
      • Does the District have to pay her for the first two weeks this time?
        • That’s not clear. The regulations do not specify what happens in this scenario. The safest option would be to immediately begin paying the teacher at the 2/3 rate on the first day of this second period of EFMLA leave, but the District could have an argument that the first two weeks are not required to be paid.

 

  • Does every employee qualify for EPSL and EFMLA? I thought employees had to work for the District for a year before they were eligible for FMLA?
    • This new law is different and the 1-year rule does not apply.
    • For EPSL, any employee regardless of the amount of time they have worked for the District, is entitled to such leave.
    • For EFMLA, an employee must have been employed for at least 30 days to be eligible.

 

Calculation of 30 Calendar Days

  • Employer has an employee that was laid off or otherwise terminated by the District on March 15, 2020, then was rehired and started working on August 10, 2020. Employee requested EFML on August 31, 2020. How does the District determine if the employee has been employed for at least 30 days?
    • An employee laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or otherwise reemployed by the employer on or before December 31, 2020, will meet the 30 day requirement provided the employee had been on the payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.
    • In the scenario above, since the employee was only employed 22 days in August, the employer would need to look back to see if the employee was employed at least 30 days of the 60 calendar days before the employee was laid off or terminated.
      • If the employee would have been on the payroll at least 30 calendar days after being rehired, there would be no need to look back at the employment in March.
    • Employee was employed by a temporary placement agency then subsequently hired by the District. Do the days the employee worked for the District through a temporary placement agency count towards the 30 days?
      • The days the employee worked as a temporary employee at the District will count toward the 30-day eligibility period.

 

How to Determine the Amount of Leave and Related Amount of Pay

  • EPSL provides up to a maximum two weeks or 80 hours of paid leave for full-time employees. Employees are eligible for EPSL regardless of how long they have worked for the District. If the employee can work from home or telework, they are not eligible for this leave. If the employer does not have work for the employee, an employee may not take EPSL for this reason.
    • Full-time employees receive the number of hours of leave that they would regularly be assigned to work over a two-week period.
      • For full-time salaried employees, assume this is 80 hours.
      • For hourly employees, determine their regularly assigned schedule and calculate total hours in that manner. (This is because the FFCRA considers individuals who do not work 40 hours each week to be “part time” even though the District likely considers many of those individuals “full time.”)
        • A full-time para who is assigned to work 7.5 hours per day, 5 days per week, is entitled to a maximum of 75 hours of EPSL for two weeks.
      • Part-time employees are entitled to use a number of hours equal to the number of hours they work, on average, over a 2-week period.
      • Depending on the reason for leave, the employee is entitled to either 100% pay or 2/3 pay.
        • See chart above for differentiation.
      • Pay caps for EPSL:
        • Total pay is capped at $511 per day or $5110 in total if the employee:
  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 2. Has been advised by a health care provider to self-quarantine related to COVID-19; or
  2. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  • Total pay is capped at $200 per day or $2,000 in total if the employee:
  1. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2) above;
  2. Is caring for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
  3. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
  • Pay cap for EFMLA:
    • Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 above for up to $200 daily and $10,000 total.

 

A new employee used 40 hours of their EPSL during their former employment. Employee has requested to use EPSL now that they are employed by the District. Does the number of leave hours reset with a new employer?

  • No, the total amount of EPSL available does not reset with a new employer.
  • It may be difficult for the District to determine whether a new Employee has taken EPSL with a prior employer, however.

Can the District require an employee to use provided or accrued leave under policy instead of EPSL?

  • No, the District may not require, coerce, or unduly influence any employee to use any other paid or unpaid leave to which the employee is entitled before the employee uses EPSL. An employee may elect to do this, however.

 

Do stepchildren qualify as a son or daughter for the purposes of EPSL and EFMLA?

  • The term son or daughter means,
    • Any of the following who are under 18 years of age:
      • Biological, adopted, or foster child;
      • A stephchild;
      • A legal ward;
      • A child of a person standing in loco parentis (someone acting in place of a parent); or
      • Who is 18 years of age or older and who is incapable of self-care because of a mental or physical disability.

 

Do grandparents who watch an employee’s son or daughter qualify as a childcare provider?

  • It depends on if the grandparents regularly care for the child. The childcare provider does not need to 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.

 

An Employee has a stay-at-home spouse for the past three years and claims not to be able to work from home given that their daycare is closed and the employee must care for their two young children. Does the employee qualify for either EFML or EPSL?

  • Most likely no, assuming the spouse is available. The employee has a need to take either leave only if no suitable person is available to care for his or her son or daughter during the period of such leave.

 

What if an employee’s child is experiencing symptoms of COVID-19 but the test has not come back yet?

  • It is possible for the employee to qualify for EPSL if the employee is advised by a health care provider to quarantine or if the employee is caring for an individual who has been advised by a health care provider to self-quarantine.
  • Even if the employee does not qualify for EPSL, the employer may implement policies and procedures that must be followed if such situation arises and those policies and procedures comply with leave laws and the District’s leave policy, to maintain a safe work environment.
    • If the employee is not covered by a leave law and does not have accrued paid time off or sick days, the District may consider offering the employee leave without pay, pending the results of the test. Employers should implement all policies and procedures consistently.
    • If there is not a positive test result, but the child remains ill, it is possible that the child could have a “serious health condition” and the employee may qualify for FMLA. The District should provide FMLA paperwork to the employee to determine if FMLA applies.
      • Not all COVID-19 patients are deemed to have a serious health condition under FMLA because they are not truly sick enough to qualify. If the individual is at home, not receiving regular treatment from a medical provider, and is not or has not been hospitalized, then the employee is likely not eligible for FMLA.
    • If no protected leave is required to be provided, the District will need to determine next steps which could include use accrued leave under policy or determining employment status, which may include separation.

 

As things evolve with the pandemic and Districts prepare their plans for the 2020-2021 school year, please don’t hesitate to reach out to us with questions!