With the continued rise in coronavirus cases and uncertainty regarding whether and in what manner schools will reopen in the fall, attorneys Rita Kanno and Diane Waters of Lewis Brisbois, in San Diego and Dallas, respectively, believe it is critical for employers to understand the evolving leave entitlements under federal, state and local law.

Some school reopening plans are generating new questions. For example, if a school opens for in-person instruction but an employee voluntarily chooses the remote learning option for his or her child, is FFCRA leave available?

According to Kanno and Waters, generally speaking, no. “In order to be eligible for FFCRA leave, the physical location where the child receives instruction or care must be closed. If, however, the school is operating at reduced capacity to comply with social-distancing guidelines, such that the employee’s child has no choice but to receive remote learning, or if the school uses a hybrid model where in-person instruction is only provided on certain days of the week, FFCRA may be available.”

Kanno and Waters recommended that employers plan ahead by facilitating discussions with their employees to learn how school reopening plans may impact their work schedules; whether remote work is or remains an option; and whether any added flexibility to their schedules, such as working around the school day or taking intermittent leave, may provide adequate solutions. “Good communication can go a long way toward reducing anxiety and finding creative solutions that enable employees to remain productive while taking on the added role of at-home educator.”