Michigan Labor & Employment Law Blog

Preparing to Deal With Employee Absences as Schools Move to Remote and Alternate Schedules

As the fall nears, the school year is about to kick off. While employees juggling work and school obligations can always present an issue, this year could prove to be a little more complicated than usual. Although some schools are preparing to go back to school in-person, others are utilizing a variety of modified schedules, or going totally remote. Even those schools going back in-person will inevitably be faced with children who have COVID-19 or at the least, symptoms as we move into flu season.

For this reason, it is a great time to start putting together a plan to deal with accommodations for employees who will need or request time off to work remotely or take time off to work with their children as they deal with the potential of a closed school or no child care provider. Making things more complicated is the fact that many employers are moving back to in-person operations. Even employers working remotely may struggle with accommodating the needs of parents dealing with the new school learning systems.

The Families First Coronavirus Relief Act ("FFCRA") provides employees up to 12 weeks of leave at 2/3 of an employee's regular rate to care for their children if their school or place of care is closed (or if their child care provider is unavailable) due to COVID-19 related reasons. It is important to remember though that the first 80 hours of leave is protected by Emergency Sick Leave, while the remaining 10 weeks is protected by the Emergency Family Medical Leave provisions of the FFCRA. 

While this sounds very simple, it can get a bit more complicated than employers may think. This is because the FFCRA has two separate leaves; one that covers 6 different qualifying events, including caring for a child whose school or place of care is closed due to COVID-19 that involves the first 80 hours. This leave is part of FFCRA and is known as the Emergency Sick Leave Act. An employee only has 80 hours of Emergency Sick Leave to use through December 31st. So, an employee who needs time off because their child's school is closed, but has already exhausted all or some of their time for other reasons, such as their own sickness or symptoms, will have a reduced bank of protected time left. 

The second type of leave is the Emergency Family and Medical Leave Expansion Act. This part of the FFCRA amends the Family Medical Leave Act to provide employees an extra reason to take up to 12 weeks of leave through December 31st. Complicating this is that if an employee has previously used some FFCRA time due to school closure or unavailability of childcare, then their bank of time is reduced for the rest of the year. Likewise, if an employee has used FMLA for any other purpose, then their entitlement to 12 weeks for school and childcare unavailability is also reduced. 

Employers are required to allow employees to use FFCRA time off first before exhausting their own personal time. Although the FFCRA only pays employees 2/3 of their pay for childcare and school closures, employers are permitted, but not required, to allow employees the opportunity to utilize their banked time off to compensate them for the remaining 1/3 of pay FFCRA leave for this purpose does not cover.

When an employee asks for a leave for the closure of school or their child's care provider was unavailable, the employer must document the name of the child being cared for, the name of the school, place of care, or child care provider that has closed or becomes unavailable, and a statement from the employee that no other suitable person is available to care for the child. This is important both to determine if leave is qualified under the FFCRA and for reimbursement from the IRS for the qualified paid time off.

One important element of the use of FFCRA leave for school closures and child care is that it may be used intermittently. Importantly, the Department of Labor ("DOL") has indicated that it is up to employers. While the DOL encourages providing intermittent Emergency Sick Leave and Emergency Family and Medical Leave Act on an intermittent basis, the DOL stresses that an employer should collaborate to determine what days will be used in advance. An employer can allow employees to take the leave on a day-by-day basis.

From a practical standpoint, saying no to an intermittent leave request may result in the employee saying, “Well after looking at my child's schedule a little harder, I'm going to need 12 weeks in a row off.” So, working with employees could be beneficial to everyone. In addition, if an employer allows an employee to simply work from home, rather than making them take a leave, the employer will not have to provide the employee paid leave and will get work out of the employee.

The DOL also encourages employers to look at a combination of remote work, intermittent leave, and even permitting employees the opportunity to work different hours during school.

When an employee has exhausted their FFCRA time, it is important to remember that the Michigan Paid Medical Leave Act requires sick leave accrued under this law to be applicable for the care of a child whose school or place of care has been closed by order of a public official due to a public health emergency. In addition, employees may have accumulated paid time off and sick time as well as leaves of absence available.

Ultimately, employers should:

1. Review their leave policies and account for the amount of time each employee has already taken or is entitled to.
2. Then monitor the time properly to ensure the employer provides time.  
3. Develop a checklist of questions for leave so that the employer can properly document the request and approve or deny the request.

Employers need to keep a record of all requests and decisions to approve or disapprove. So, an orderly system to track these requests will be helpful. Employers also want to be consistent in their review processes so they do not result in unintended inconsistencies that could lead to potential discriminatory outcomes. That is why it is important to evaluate all requests and only provide FFCRA leave for requests that qualify and utilize the employer's non-FFCRA leave and time off procedures in a fair and evenhanded manner. 

It is important to know that employees are not simply entitled to unlimited leave for any reason. All employers should evaluate the need for leave, remote work, and additional flexible work options available to avoid confusion and complaints.

If you have further questions involving employee absences due to evolving school schedules or other general questions, contact a Foster Swift Labor & Employment Law attorney:

• Mike Blum (Southfield)… 248.785.4722…mblum@fosterswift.com
• Karl Butterer (Grand Rapids)… 616.726.2212…kbutterer@fosterswift.com
• Cliff Hammond (Lansing)… 517.371.8135…chammond@fosterswift.com

Categories: Department of Labor, Employee Handbook, Employment