As we tip-toe toward the resumption of the school in Texas in mid-August, parents and employers are facing a myriad of questions and a dearth of certainty.  Will students be attending classes in-person or remotely or some combination of each?  Will the school semester be interrupted if the pandemic continues to flare and the Governor issues a shelter-at-home order?  What happens to employees with school-age children when or if schools suddenly close? Of equal importance, what does this mean for employers?

To try to answer some of these questions, we will first address the recent guidelines issued by the Texas Education Agency (“TEA”) for the 2020-2021 academic year. We will then provide some insight into how the TEA’s guidelines mesh with the Families First Coronavirus Response Act (FFCRA) and CARES Act.

1.    The TEA’s Guidelines

On July 7, 2020, the TEA issued comprehensive guidelines for a safe return to on-campus instruction for the 2020-2021 school year. Parents will have more choices than normal this school year as they decide which school setting is best for their children including: 

• • Daily on-campus learning will be available to all parents who would like their students to learn in school each day;
  • Health and safety procedures will be in place to support student and teacher safety;
  • TEA will be providing school systems with resources to ensure a strong start which could include money for extra COVID related expenses, additional PPE supplies, free online, TEKS aligned learning tools to deliver remote instruction, and additional teacher training to especially help bridge the digital divide for students at home.

2.   What happens if school is “closed”?

As a threshold question, an employer should confirm its eligibility under the FFCRA and other statutes based on its size and whether hardships exist. If, after undertaking this analysis, the employer concludes that it is covered by the FFCRA, it will need to determine whether school for the employee’s child is open or closed.

To be eligible for paid sick leave and/or extended family medical leave relating to care for a child under the FFCRA, the child’s school and/or daycare and/or “place of care” has to be closed due to COVID-related reasons.  According to the TEA, online instruction is recommended for parents to choose for the 2020-2021 academic year. However, the TEA also recommends that schools be open for in-school instruction as well. 

The Department of Labor has provided some clarified about what “closed” means in relation to school in Question No. 70 on its website, as follows.

My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?

Yes. If the physical location where your child received instruction or care is now closed, the school or place of care is “closed” for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” your child is still expected or required to complete assignments.

Using the TEA’s guidance, schools in Texas, whether learning at the physical building or remotely, are open.  As such, employees who choose to have their children distance learn and, therefore, may have to remain at home for the academic year, should not be able to argue that school is “closed”.  In general, an open school may deprive the employee to claim benefits under the FFCRA.  

Many factors ultimately determine whether an employee is eligible for benefits under the FFCRA, including, but not limited to, whether “open” schools suddenly “close” due to reported cases of students, teachers, or administrators falling ill with COVID-19. As with all employee benefit-related questions, whether an employee is eligible for FFCRA benefits requires a case-by-case assessment.  

3.   What impact does working remotely have on eligibility for FFCRA benefits?

Another factor in determining whether an employee is eligible for benefits under FFCRA should schools “close” during the 2020-2021 academic year is whether the employee can work remotely and/or telework.  If remote working or teleworking is an option, the employee may find it difficult to qualify for benefits under FFCRA.

According to DOL regulations, an employee is able to telework if: 

(a) the employer has work for the employee; 

(b) the employer permits the employee to work from the employee’s location; and 

(c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. Telework may be performed during normal hours or at other times agreed by the employer and employee. 

 If, however, the employee cannot work remotely and/or telework due to their position, the employer will need to evaluate the employee’s eligibility for benefits under FFCRA based on the approved reasons for benefits. 

As if the FFCRA, alone, was not complicated enough, two other statutes may also come into play.  Under the Emergency Paid Sick Leave Act (“EPSL”), an employee may be eligible for paid leave for 2 weeks (up to 80 hours). One consideration in determining an employee’s eligibility under EPSL is whether the employee already received paid leave under FFCRA. 

Second, under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), an employee may be eligible to take extended leave from her/his position and receive benefits for up to an additional 12 weeks (with 2 weeks initially unpaid) of leave at rate of 2/3 of the employee’s pay. Under this Act, along with the benefits at a rate of 2/3 of pay, the employer must ensure that the employee will have the same or similar position available to the employee when the leave ends.  In addition, there are limitations on eligibility and the amount of leave. 

Since the applicability of and eligibility for benefits under FFCRA and other statutes are fact-specific questions, it is always recommended that you consult with an HR specialist or employment lawyer before undertaking a specific course of action. The attorneys in our Austin and Dallas offices are available to answer any questions you may have. 

 

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