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U.S. Labor Department Reverses Position on Intermittent Child Care Leave

    Client Alerts
  • September 03, 2020

The Families First Coronavirus Response Act (FFCRA) allows parents to take up to 12 weeks of subsidized leave if their child’s school or day care is closed due to the COVID-19 pandemic. Based on emergency rules issued by the U.S. Labor Department, employees could use FFCRA leave if the school was only open for remote learning. However, DOL failed to address situations that have become common as schools begin the new academic year. These include schools that are open for in-person learning but also provide a remote option.

Last month, a federal district court in New York held that DOL’s emergency FFCRA rules failed to meet the statute’s requirements because, among other provisions, they did not allow use of child care leave on an intermittent basis depending on the school’s actual learning schedule. Perhaps in response to this decision, last week DOL amended its FFCRA guidance to permit use of intermittent child care leave in some of these situations.

DOL added new language to its FFCRA FAQ stating that when a school operates on a hybrid schedule, employees may take FFCRA leave on days where the child is attending on a remote basis. However, the agency stood by its position that if the school is open for in-person learning, parents who elect remote instruction may not use FFCRA child care leave. The parents may use FFCRA paid sick leave if the child has been diagnosed with COVID-19 or is subject to a quarantine order.

DOL may revisit additional portions of its FFCRA rules based on the New York court decision. The revised FAQ can be found here.