Back-to-School during COVID-19: A Pierce Atwood Q&A for Employers
As schools throughout New England finalize their plans for the fall semester, many employees are faced with an ongoing need to care or facilitate education for their school-aged children on a part-time or even full-time basis. At the same time, employers are grappling not only with what they are legally required to provide, but also with what is the right thing to do to meet the needs of their workforce while maintaining adequate and productive staffing.
Further complicating matters, there are several different sources of leave to which employees in Maine, Massachusetts, New Hampshire, and Rhode Island may be entitled, at both the federal and state levels. An employer assessing its legal obligations vis-à-vis an employee who requires leave due to school closure or remote learning must run through a veritable alphabet soup of potentially applicable leave laws to ascertain which, if any, apply.
The following Q&A is intended to address some of the most common scenarios that employers in Maine, Massachusetts, New Hampshire, and Rhode Island will confront as the new school year approaches.
Click below to skip to a specific question:
1. What types of leave may be available to employees with COVID-19-related needs in connection with their child’s return to school?
Different types of leave may be available, depending on the employee’s particular situation. Below each set of answers, we have provided various factual scenarios on how to apply the various sources of leave.
- Families First Coronavirus Response Act (FFCRA) – applies to employers with 500 or fewer employees and contains two separate types of leave:
- Emergency Paid Sick Leave Act (EPSLA)
- Up to two weeks of paid leave to be used prior to December 31, 2020.
- Available after 30 days of employment.
- Can be used by employees who are exhibiting COVID-19 symptoms or who have been advised by a medical provider or public agency to self-quarantine, those who need to care for a family member who is exhibiting symptoms or is self-quarantining, or those who need to care for a child whose school or child care provider has been closed as a result of COVID-19.
- Emergency Family and Medical Leave Expansion Act (EFMLEA)
- Up to 12 weeks of paid leave to be used prior to December 31, 2020.
- Available after 30 days of employment.
- Can be used by employees who need to care for a child whose school or child care provider has been closed as a result of COVID-19.
- The first two weeks of leave overlap with the two weeks of EPSLA leave if also used for the purpose of caring for a child due to school/child care closure.
- Emergency Paid Sick Leave Act (EPSLA)
- Family and Medical Leave Act (FMLA – federal law)
- Up to 12 weeks of unpaid leave in a 12-month period.
- Available after 12 months of consecutive employment, if the employee has worked at least 1,250 hours in the preceding 12 months and is employed at a worksite with at least 50 employees within a 75-mile radius.
- Can be used by employees who need to provide physical or psychological care for a family member with a serious health condition.
- Leave runs concurrently with FFCRA leave, if available.
- State Family and Medical Leave Laws that run concurrently with any available FMLA leave, albeit with somewhat different eligibility rules and leave requirements:
- Maine – applies to employers with 15 or more employees at one location in Maine; eligibility after 12 consecutive months of employment; provides up to 10 weeks of unpaid leave in a two-year period.
- Massachusetts – currently has no family leave law, but paid family leave will be available beginning in 2021 (outside the scope of this Q&A).
- Rhode Island – applies to employers with 50 or more employees; full-time employees (30+ hours/week) are eligible after 12 consecutive months of employment; provides up to 13 weeks of unpaid leave in a two-year period.
- New Hampshire – no family leave law.
- Americans with Disabilities Act (ADA – federal law)
- Does not require leave for an employee whose family member is unable to go to school as a result of an underlying disability; however an employer that provides personal leave to employees must offer leave on a non-discriminatory basis.
- Applies to employers with at least 15 employees.
- Maine, Massachusetts, Rhode Island, and New Hampshire each have a state law version of the ADA, albeit with different coverages:
- Maine – applies to all employers.
- Massachusetts – applies to employers with six or more employees.
- Rhode Island – applies to employers with four or more employees.
- New Hampshire – applies to employers with six or more employees.
- Other Leave under State Law:
- Maine Public Health Emergency Leave – all employers must provide “reasonable and necessary” unpaid leave for a variety reasons resulting from a public health emergency, including to care for a family member, to receive treatment or comply with a quarantine order, or to comply with an employer’s directive to remain out of the workplace due to a concern that the employee may expose coworkers to COVID-19.
- Maine Earned Employee Leave – Maine currently has no paid sick leave law, but paid leave for any purpose, including to care for a family member, will be available beginning in 2021 (outside the scope of this Q&A).
- Massachusetts Earned Sick Time – would cover an absence related to an employee’s own illness as well as an absence to care for a family member who is ill.
- Rhode Island Paid Sick Leave – would cover an absence related to an employee’s own illness as well as an absence to care for a family member who is ill.
2. What leave is available to an employee when the child’s school has adopted a fully remote schooling model with no in-person school attendance?
The EFMLEA provides a total of 12 weeks of leave to employees who need to care for a child whose school or child care facility is closed due to COVID-19. In the case of fully remote schooling, the Department of Labor considers the school to be effectively closed, and an employee would be entitled to EFMLEA leave to care for their child and to supervise their remote learning. To qualify for EFMLEA leave, the employee must represent that there is no other suitable person to care for the child, but the employee is not required to exhaust all other child care options or provide the employer with additional detail about the employee’s child care arrangements. EFMLEA leave must be paid at two-thirds of an employee’s regular weekly wages, subject to a cap of $200 per day.
For employees who are not eligible for EFMLEA leave or who have exhausted such leave, consider state leave laws:
- Maine: Employers may need to provide unpaid leave under the public health emergency leave statute. The statute is ambiguous as to when leave is available for child care purposes; it simply provides that leave is available when the employee “is needed to provide care or assistance” to a child due to a public health emergency. Given this ambiguity, we recommend that employers provide unpaid public health emergency leave to employees who need to stay at home to care for or supervise their child during fully remote schooling.
- Massachusetts, New Hampshire, and Rhode Island do not require job-protected leave to cover an absence related to a school closure.
3. What leave is available to an employee when the child’s school has adopted a hybrid schooling model with in-person attendance on some days but remote schooling on other days?
The typical hybrid schooling model involves about half of the students attending in-person school on certain days, while the other half of the students attend school on other days (e.g. half attend Monday/Tuesday and half attend Thursday/Friday). On the days when a child is not attending in-person school, they attend school remotely. The Department of Labor recently issued guidance confirming that under a hybrid schooling model, the school is effectively “closed” to a particular student on any days when they are not permitted to attend. Therefore, an employee is permitted to utilize EFMLEA leave to care for their child and supervise their remote learning on the days when the child is assigned to attend school remotely. On the days when the child attends school in person, there is no qualifying reason for leave. In addition, if the employee can maintain a full work schedule through telework, there may not be any need to take EFMLEA leave.
The EFMLEA does not entitle an employee to use paid leave intermittently, although the employer and employee may agree to the use of intermittent leave. In the case of hybrid schooling, it is up to the employer whether or not to allow the use of EFMLEA leave intermittently, but the DOL “encourages employers and employees to collaborate to achieve maximum flexibility.”
For employees who are not eligible for EFMLEA leave or who have exhausted such leave, consider state leave laws:
- Maine: Employees are entitled to “reasonable and necessary” leave to care for a child as a result of a public health emergency, which may be taken intermittently. Public health emergency leave may be unpaid, but given that the cost of EFMLEA leave is reimbursable to the employer, in most instances it will make sense for the employer to agree to the use of intermittent, paid EFMLEA leave, followed by unpaid public health emergency leave once paid leave is exhausted.
- Massachusetts, New Hampshire, and Rhode Island do not require job-protected leave to cover an absence related to a hybrid plan with partial closure.
4. What leave is available to an employee when the child’s school is fully or partially open, but the employee elects to keep their child home due to general concerns about COVID-19 in the school environment?
The FFCRA does not provide a leave entitlement to employees when the child’s school remains open but they choose to keep their child at home. When the parent’s decision is motivated by a general fear of COVID-19 exposure, rather than the child’s serious health condition or disability, there is likewise no available leave under the FMLA, and the ADA does not require employers to grant leave to provide child care, or even medical care, to a non-disabled family member.
- Maine: The public health emergency leave statute requires leave when the employee “is needed to provide care or assistance” to a child due to a public health emergency, and the statute contains no requirement that the need for care be the result of absolute necessity rather than the parent’s choice. Given this ambiguity, we recommend that employers provide unpaid public health emergency leave to employees who choose to keep their children at home due to general COVID-19 concerns. Employers should consult with counsel prior to terminating an employee under these circumstances.
- Massachusetts, New Hampshire, and Rhode Island do not require job protected leave to cover an absence related to a general concern about COVID-19 in the school environment.
4(a) What leave is available to an employee when the child’s school is fully or partially open, but the employee elects to keep their child home due to the child’s preexisting medical condition that places them at an elevated health risk due to COVID-19?
Once again, the FFCRA does not provide a leave entitlement to an employee whose child’s school remains open but who chooses to keep their child at home, even when that choice is made because the child has a preexisting medical condition that places them at an elevated health risk due to COVID-19. Rather, an employer faced with this type of request should explore whether the employee may be entitled to FMLA or personal leave. Under the FMLA (and state law counterparts in ME and RI), unpaid leave may be available if the employee’s child has a serious health condition, a medical provider recommends that the child not attend school, and the employee is needed to care for the child at home.
Under the ADA, leave is generally not available to an employee who is not themselves disabled but who needs to care for a disabled child who is unable to attend school. However, the ADA (and equivalent state anti-discrimination laws) requires that employers provide leave to parents of disabled children to the same extent as they would provide leave to similarly situated employees for reasons not related to a child’s disability. For example, if an employer’s policy is to provide unpaid personal leaves of absence to employees, the employer likely must provide a leave of absence on the same terms to employees to care for a disabled child who is unable to attend school due to COVID-19. Whether or not an employee is entitled to FMLA or personal leave to care for a child with an elevated health risk due to COVID-19 is a case-by-case inquiry that should be done in consultation with counsel.
In addition to leave that may be available under the FMLA and ADA and their state law counterparts, consider other state leave laws:
- Maine: The public health emergency leave statute requires unpaid leave when the employee “is needed to provide care or assistance” to a child due to a public health emergency.
- Massachusetts: Up to 40 hours of paid earned sick time is available to care for the employee’s child who is suffering from a medical condition that requires home care.
- New Hampshire: Employers are not required to provide job-protected leave related to a child’s elevated health risk.
- Rhode Island: Up to 40 hours of paid sick leave is available to care for the employee’s child who is suffering from a medical condition that requires home care.
5. What leave is available to an employee when the child’s school is fully or partially open, but the child has been advised to self-quarantine by a government agency or medical provider?
The EPSLA requires covered employers to provide up to two weeks of leave to employees who are required to care for a child who has been advised to self-quarantine. This leave must be paid at two-thirds of the employee’s weekly wages subject to a cap of $200 per day. Leave for this purpose cannot be taken intermittently, unless telework is available but the employee is unable to telework due to a COVID-19 related reason, in which case the employer and employee may agree to intermittent leave. If the quarantine lasts longer than two weeks, EPSLA leave would no longer be available, but the employee could continue to qualify for intermittent EFMLEA leave for up to an additional 10 weeks, payable at two-thirds of the employee’s regular weekly wages, for any days when the child’s school is closed or the child is assigned to attend school remotely. On those days when the child is permitted to attend school in person but is prevented from doing so due to the self-quarantine, neither EPSLA nor EFMLEA leave is available after the first two weeks.
For employees who are not eligible for FFCRA leave or who have exhausted such leave, consider state leave laws:
- Maine: Employers should provide unpaid public health emergency leave for this scenario if FFCRA leave is exhausted or unavailable.
- Massachusetts: Up to 40 hours of paid earned sick time is available for time spent obtaining a medical diagnosis or treatment, or providing home care if the child is sick.
- New Hampshire: Employers are not required to provide job-protected leave for a self-quarantine of the employee or child.
- Rhode Island: Up to 40 hours of paid sick leave is available for time spent obtaining a medical diagnosis or treatment or providing home care if the child is sick.
5(a) What leave is available to an employee when the child’s school is fully or partially open, but the child is exhibiting symptoms of COVID-19?
The EPSLA requires covered employers to provide up to two weeks of leave to employees who are required to care for a child who is exhibiting COVID-19 symptoms, but only to the extent necessary to obtain a medical diagnosis or if the child is advised to self-quarantine by a government agency or medical provider. Leave for this purpose must be paid at two-thirds of the employee’s weekly wages subject to a cap of $200 per day and is not permitted to be taken intermittently, unless telework is available but the employee is unable to telework due to a COVID-19 related reason, in which case the employer and employee may agree to intermittent leave. Once the child receives a diagnosis, whether positive or negative for COVID-19, there is no further leave entitlement under the FFCRA unless the child is advised to self-quarantine. However, if the illness qualifies as a serious health condition (which a COVID-19 diagnosis likely would in many instances), the employee may be entitled to federal or state (ME and RI) FMLA leave to care for the child. Guidance from the Department of Labor recognizes that sometimes complications from an illness like the flu may constitute a serious health condition under certain circumstances, and the same may apply to COVID-19. Employers faced with this scenario should consult with counsel prior to denying leave.
- Maine: Employers should provide unpaid public health emergency leave.
- Massachusetts: Up to 40 hours of paid earned sick time may be available if the employee is caring for their own child who has a medical condition that requires home care.
- New Hampshire: Employers are not required to provide job-protected leave when a child is sick.
- Rhode Island: Up to 40 hours of paid sick leave is available to care for the employee’s child who is suffering from a medical condition that requires home care.
5(b) If an employee’s child has been advised to self-quarantine by a government agency or medical provider, or if the child is exhibiting symptoms of COVID-19, should the employer require the employee to also stay home from work during the quarantine period, even if the employee does not need to remain at home to care for the child?
Unless the employee is directed to quarantine or self-isolate due to exposure to their child, there would be no entitlement to FFCRA leave in this scenario. FMLA leave may be available under the same conditions discussed in Questions 4(a) and 5(a) above, but if the child is asymptomatic or has only a mild case of COVID-19, the child’s condition may not qualify as a serious health condition. In situations where an employee’s child has been advised to self-quarantine or is exhibiting COVID-19 symptoms, however, it may be prudent for the employer to require the employee to stay home from work even if the employee is not required to care for the child. Employers should consider whether the employee’s job can be done remotely and whether the employee is able to utilize other forms of paid leave, such as vacation pay, to cover the forced absence. In most cases where the employee’s presence at work is not essential, it is advisable to adopt a flexible approach and devise a plan to require the employee to remain at home during the period of self-quarantine, or until the employee obtains a negative COVID-19 test result, with as little disruption as possible to the employee’s pay.
- Maine: Employees who are required by their employer to remain at home due to a concern that the employee may infect others in the workplace are entitled to unpaid leave under the public health emergency statute, and the employee may be able to collect unemployment compensation during this period.
- Massachusetts: Up to 40 hours of paid earned sick time may be available if the employee is caring for their own child who has a medical condition that requires home care.
- New Hampshire: Employers are not required to provide job-protected leave when a child is sick.
- Rhode Island: Up to 40 hours of paid sick leave may be available if the employee is caring for their own child who has a medical condition that requires home care.
6. What leave is available to an employee when the child’s school schedule has been altered such that the employee can no longer remain at work during the employee’s normal work hours
The FFCRA provides paid leave to employees who need to care for a child whose school is closed due to COVID-19, which would include a change in hours such that the school is partially closed during times when the employee is typically scheduled to be at work, or a situation where before or after care is no longer available. Although the FFCRA does not generally entitle an employee to use leave intermittently, the employer and employee can agree to the use of intermittent leave in any time increment. For example, the employer may decide to allow the employee to arrive one hour late each day due to the employee’s child’s altered school schedule. Alternatively, the employer may decide, for productivity or other reasons, to allow only absences of a longer duration, such as a full or half day.
If FFCRA leave has been exhausted or is unavailable, consider state leave laws:
- Maine: Employees are entitled to “reasonable and necessary” leave to care for a child as a result of a public health emergency, which may be taken intermittently. As discussed in Question 3 above, however, in most instances it will make sense for the employer to agree to the use of intermittent, paid FFCRA leave, which is fully reimbursable to the employer, followed by unpaid public health emergency leave once paid leave is exhausted.
- Massachusetts, New Hampshire, and Rhode Island do not require job-protected leave to care for a child due to an altered school schedule related to COVID-19.
7. What leave is available to an employee who is required by state law to self-quarantine after transporting their child to a college or boarding school in another state?
The EPSLA requires covered employers to provide up to two weeks of fully paid leave to employees who are required by state law to self-quarantine. Nothing in the regulations or guidance suggests that this leave does not apply to employees who take a voluntary action—such as a trip out of state—that results in a self-quarantine requirement. However, the employer may adopt rules prohibiting this type of interstate travel, in which case the employee’s travel could be addressed as a disciplinary violation. On the other hand, any adverse action or denial of leave could constitute retaliation or interference with the employee’s leave rights, and the Department of Labor encourages flexibility by employers.
Courts and juries are also likely to be concerned with the perceived fairness of an employer’s actions in dealing with employee absences during a pandemic, and they may consider factors such as whether the employer considered non-disciplinary options such as telework during the quarantine period, or whether the employee’s own actions were reasonably necessary, such as when driving a child to attend school, or reckless, such as when traveling to a hot spot for a vacation. In the end, employers should proceed with caution and consult with counsel prior to taking adverse action against an employee or denying EPSLA leave (or Maine public health emergency leave) under these circumstances.
8. What leave is available to an employee whose child has not been previously enrolled in school, but where the employee lacks child care options as a result of COVID-19?
The FFCRA only provides a leave entitlement to employees who are required to care for a child because the child’s school or child care provider is closed; it does not provide leave to employees whose children were not previously enrolled with a school or child care provider. However, employers in Maine should provide unpaid public health emergency leave to employees in this scenario for a “reasonable and necessary” period of time. The amount of time will vary on a case-by-case basis, but the employer may require the employee to act with reasonable diligence in pursuing available child care options, such as regularly submitting applications to child care providers or seeking assistance from family members.
9. Under what circumstances must an employer allow an employee to take intermittent leave to care for a child who is not in school due to a COVID-19-related reason?
In cases where telework is not available or possible, intermittent leave is available under the FFCRA only when the employee’s child’s school or child care facility is closed, and only by agreement between the employer and employee. If an employee requires leave for a covered reason other than the closure of a school or child care facility, and the employee is able to telework, the employer and employee may agree to intermittent leave, but neither is required to agree. If telework is not available, the FFCRA does not allow leave to be taken intermittently for reasons other than the closure of a school or child care facility. To the extent that the need for leave qualifies under the FMLA (or state equivalents in ME and RI) or the employee is entitled to a personal leave of absence (see Question 4(a)), such leave can also be taken intermittently, although there is no requirement for that leave to be paid.
- Maine: The unpaid public health emergency leave statute is vague, seemingly broad, and provides for “reasonable and necessary” leave; thus, unpaid intermittent leave is likely available to Maine employees who need to care for a child for almost any reason related to COVID-19.
- Massachusetts: The smallest amount of earned sick time an employee can use is one hour. For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses for other absences.
- Rhode Island: Employees may use earned paid sick time in any increment agreed upon by the employer, but an employer may not require a minimum increment of more than four hours.
10. If an employee has exhausted all available leave but has a continuing need to remain at home to care for a child whose school remains closed for in-person attendance, may the employer agree to temporarily lay off the employee or place them on an unpaid leave of absence so they can collect unemployment?
Yes. In this situation, an employer may choose to retain the employee by placing them on an unpaid leave of absence or may lay off the employee or accept the employee’s resignation. In general, we recommend that employers not make any express promises to employees about their entitlement to receive state unemployment compensation, as entitlement to those benefits will be determined by the appropriate state agency and are outside of the employer’s control. However, employees who are required to care for a child as the result of a school closure and do not qualify for paid leave should be eligible for state unemployment compensation as the result of the state emergency executive orders expanding access to unemployment benefits.
- Maine: Employers in Maine should not “lay off” employees who have exhausted other forms of available leave, because the employee may still be entitled to “reasonable and necessary” public health emergency leave under state law. Rather, an employer should place such an employee on an unpaid leave of absence while continuing to maintain contact with the employee about their ability to return to work.
11. If an employee needs to remain at home to care for a child who is not in school due to a COVID-19-related reason, must the employer provide leave if telework is available?
If an employee is able to perform their job duties remotely, and the employer allows telework, the employee does not have a qualifying need for FFCRA leave. An employee is entitled to FFCRA leave when telework is available only to the extent that the need for leave prevents the employee from performing their job duties during the required hours. In addition, the employer and employee may agree for the employee to telework outside of their regularly scheduled hours, in which case there is no need for FFCRA leave.
For example, if the employee is required to care for their child from 9–11 a.m. each day because of a school closure but agrees with the employer to telework from 11 a.m.–7 p.m., the employee is still able to work a full day and is not eligible for FFCRA leave. If, however, the employer’s business hours require the employee to work between the hours of 9 a.m.–5 p.m., the employee would be eligible for FFCRA leave from 9–11 a.m. each day to care for their child (assuming the employer agrees to allow intermittent leave) and would telework from 11 a.m.–5 p.m. Likewise, if the employee chooses not to telework outside of their regularly scheduled hours and the employer agrees to allow intermittent leave, the employee would be entitled to FFCRA leave for the hours they are unable to telework.
11(a) If an employee needs to remain at home to care for a child who is not in school due to a COVID-19-related reason, and telework is available, may the employer impose rules regarding telework hours and productivity expectations, or alternatively, may the employer instead provide leave even if the employee prefers to telework?
Generally, an employer may impose rules regarding required telework hours, productivity expectations, and other terms and conditions of the remote work environment. To the extent that an employee may care for a child while still meeting the employer’s telework rules, the employee does not have a qualifying need for FFCRA leave. If, however, the employee is not able to simultaneously care for their child while meeting the employer’s telework requirements, the employer may instead require the employee to utilize available paid or unpaid leave to the same extent as if the employee were unable to physically come to work in person.
With all COVID-related work arrangements, we encourage employers to be flexible in adopting policies that provide legally required leave to their employees while still allowing the employer to maintain a productive workforce.
This Q&A is not intended to address every possible scenario relating to employees who need to care for their children due to COVID-related school closures, and there are a number of other nuances that may impact an employee’s eligibility for leave. Pierce Atwood’s employment law team is here to provide advice and counsel to employers with questions on any of this information, and suggest you contact an attorney prior to denying leave to any employee for a COVID-related reason. Please contact Jim Erwin, Suzanne King, Katy Rand, Dan Strader, or your Pierce Atwood attorney for assistance.