FAQ on leave for taking care of children under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) took effect April 1, 2020, and lasts through December 31, 2020. It provides some important protections for employees, such as emergency paid sick leave and expanded FMLA leave. There are different requirements and levels of pay, depending on the reasons that you are taking the leave. This explains the benefits and requirements when an employee takes leave to take care of their child when their child’s school or daycare is closed for a COVID-19 related reason.

Requesting leave to take care of your child when their school is closed
The FFCRA provides for a total of 12 weeks of leave if a school district employee is unable to work or telework because the employee must care for a child whose school or daycare is closed due to COVID-19 related reasons. The law also provides for two weeks (80 hours) of paid emergency sick leave. Under the law, the first two weeks of the 12 weeks are unpaid, with the remaining 10 weeks of leave paid at 2/3rds of the employee’s regular rate, up to a maximum of $200 per day ($10,000 max). However, since the law also provides for two weeks of paid emergency sick leave, the employee may elect to use the two weeks of paid emergency sick leave during the first 2 weeks of the FFCRA leave (which would otherwise be unpaid), so that the employee receives pay for the initial two week period as well.

If the employee is taking off to care for the employee’s own child under these circumstances, the employee will receive up to 2/3rds of the employee’s regular rate of pay, up to a maximum of $200.00 per day, for the 2 weeks of emergency sick leave ($2000 max). In sum, the total amount of leave available under these circumstances is 12 weeks, and the total amount that an employee may receive is capped at $12,000 for all weeks combined.

Summary of provisions above:

  • FFRCA Leave = 12 weeksFirst 2 weeks unpaidRemaining 10 weeks paid at 2/3 regular rate,  $200/day max
  • 2 weeks (80 hours) emergency sick leave may be used for first two, unpaid weeks of FFRCA leave2/3 regular rate, $200/day max

Am I entitled to use both types of leave?
Yes. If eligible because your child’s school or daycare is closed, you may take both emergency sick leave and FMLA leave. Keep in mind that the FFCRA is limited to 12 weeks of leave. The Emergency Paid Sick Leave Act provides for the initial two weeks of paid leave, up at 2/3rds of regular pay, or $2000 total. This paid emergency sick leave is on top of other sick or personal leave provided by the school district, and the district may not require you to use other paid leave as a substitute unless you wish to do so. The remaining 10 weeks is provided through a paid version of FMLA.

How do I request this leave?
Contact your district’s Human Resources department to request the leave for taking care of your child under these circumstances and inform them that you need to take leave for this reason.

What sort of documentation must I provide?
The Department of Labor says that the employer may require you to provide documentation in support of your request for such leave, including a notice that has been posted on a government, school, or daycare website, or an email from an employee or official of the school, place of care or child care provider, stating that they are closed.

What is considered telework under the FFCRA?
You may telework when your employer permits you to perform work from your home. Telework is compensated at the same rate as regular work and is not compensated under the paid leave provisions of the FFCRA.

What does the law mean when it says that this leave is available if the employee is unable to work or telework?
Under these circumstances, this means that you are unable to work because you must take care of your child due to the child’s school or daycare being closed for a COVID-19 related reason. Just because your district is allowing you or directing you to telework, this does not mean that you are not entitled to take the leave. Again, you are entitled to take this leave if you are unable to perform your normal duties or telework due to having to take care of your child. If you are able to telework while still caring for your child, emergency paid sick leave and expanded FMLA leave are not available.

May I take my emergency sick leave or expanded FMLA leave intermittently while working at my normal worksite or teleworking?
Yes, but only if the school district agrees to allow you to do. If the school district agrees, you may take the intermittent leave in any increment. The Department of Labor encourages employees and employers to work cooperatively.

May I use my accrued paid or personal leave to supplement my salary over and above the 2/3rds allotment that the FFCRA provides?
According to the Department of Labor, you may not simultaneously take both the FFCRA leave and your own personal leave unless your district allows you to do so. For example, if your district allows you to do so, if you are receiving 2/3rd of your regular earnings under the FCCRA, you could use your own accrued leave to receive the remaining 1/3rd of your regular earnings so that you still receive your normal pay.

Is all FMLA leave now paid?
No. The only type of FMLA leave that is paid is the expanded leave now available under the FFCRA when such leave exceeds 10 workdays and is taken for the purpose of taking care of a child whose school or daycare is closed due to COVID-19 related reasons.

If I elect to take paid sick leave or FMLA, must my school district continue my health insurance coverage?
Yes. The school district is obligated to continue group health coverage during this leave on the same terms as if you continued to work. Generally, you must also continue to make your normal contributions.

What if I recently took some or all of my FMLA for another reason prior to the COVID-19 situation?
Under the FMLA, you are only entitled to a total of 12 weeks of leave during the 12-month period used by your district to determine FMLA leave, including the expanded FMLA provisions. The FFCRA does not change this allotment; it just allows you to take it for an additional reason. Thus, if you took three weeks FMLA leave in January to have surgery, for example, you only have nine weeks of FMLA leave left to take off to care for your child.

The 2 weeks of emergency sick leave is available, regardless of having taken some or all of your FMLA leave for another reason. This is not considered “FMLA leave” per se, and therefore you are not excluded from it if you have exhausted your FMLA leave. However, if you take the emergency sick leave concurrently with the first two weeks of the FFCRA leave, then those two weeks will count towards the 12 workweeks total in the 12-month period.

Who is considered a “child” under the law?
Under the FFCRA, a son or daughter is your own child, which includes a biological, adopted, or foster child, your step-child, a legal ward, or a child for whom you are in loco parentis, that is, someone with day to day responsibilities to care for or financially support a child. Under the FFCRA, a son or daughter is also an adult son or daughter (that is, over 18 years old) who 1) has a mental or physical disability, and 2) is incapable of self-care because of that disability.

Is my job protected if I take leave under one or both of these provisions?
Yes. You cannot be fired, disciplined or otherwise discriminated against because you took one of these leaves. Additionally, you must be provided with the same or nearly equivalent job upon your return from these leaves. However, this is not total job protection under any circumstances. If the school district can demonstrate that it would have taken some employment action against you, such as a lay-off or non-renewal, regardless of whether you took the leave, it can still take that particular action against you.