FFCRA Lawsuits Trending as Virtual School Year Begins

Families First Coronavirus Response Act (FFCRA) Lawsuits Trending as Virtual School Year Begins

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The Litigation Trends

As virtual learning goes into full swing and parents continue to battle the challenges that come along with trying to keep they're job while home schooling their kids, questions/lawsuits surrounding the Families First Coronavirus Response Act are already on the upswing. One attorney says several lawsuits have been filed across the country and that this litigation trend involving FFCRA is only the tip of the iceberg.

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Chelsea Smith is a labor and employment attorney at the national law firm Hall Estill. She also serves as acting General Counsel to the Oklahoma House of Representatives. She provides advice, training and has been a speaker regarding compliance with employment and ethics laws. When it comes to the FFCRA and how it can be used, she says she receives several calls a week from employers with questions about FFCRA and how to navigate it. She says it's a very complex issue to break down because it varies by state and is very case specific.

Smith says virtual school is relevant under the FFCRA because an employee’s child-care responsibilities may increase and child care may be unavailable. However, it gets a little murky on whether a virtual school is considered to be a closed school for purposes of FFCRA.

"Many schools are going virtual and are therefore considered closed so a parent can fall under the provision of the FCCRA that provides for an employer to qualify for Expanded FMLA leave. However, if a school is open but a parent ops to educate their child virtually/online, then they may not qualify.  The DOL provided guidance that instruction should be entirely online to be considered “closed," Smith says.

Denying An Employee FFCRA Leave

Smith also says an employer can deny an employee FFCRA leave if another parent is available to care for the child whose childcare or school is closed.

"No other person should be available to provide care to the children during the period for which the employee is requesting leave; however, both parents could use intermittent leave and alternate the use of it should both of their employers agree.  Each situation could be different and employers should assess each circumstance and be flexible during the unprecedented times," Smith says.

Whether or not the employers must let the worker whose child is at home due to virtual school work intermittently is going to be looked at on a case by case basis. For example,  the SDNY decision in New York this month said yes, but that may not be the law of the land in other states.

"According to the SDNY decision, employers would need to let the workers work intermittently; however, that decision is not applicable nationwide and would depend on how other courts interpreted the FFCRA," Smith says.

As far as advice for employers on this issue, Smith says,

"The school year has begun in most areas, schools are physically closed and virtual all over the United States.  Employees should know their options with FCCRA and employers should be prepared," Smith says.