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When A, B, C is Not as Easy as 1, 2, 3

By July 17, 2020November 12th, 2021No Comments

No A, B, Cs Means Employer Pays Childcare Leave

FFCRA Requires Paid Leave For School or Daycare Closures Due to COVID-19
The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide their employees with paid sick leave and expanded benefits under the Family Medical Leave Act (FMLA) for specific reasons related to COVID-19. These provisions apply from April 1, 2020, through December 31, 2020. This temporary expansion rule was enacted to address the numerous effects of COVID-19 in the workplace.

Generally, employers covered under FFCRA must provide employees with up to two weeks (80 hours or part-time equivalent) of paid sick leave based on their regular wages. The Act also includes pay at two-thirds of the employee’s regular pay for individuals caring for a family member with COVID-19 or during self-quarantine, up to $200 daily, and $2,000 total.

Finally, the Act provides for up to an additional 10 weeks of pay at a two-thirds rate of regular pay, where the employee has been employed for at least 30 days and is unable to work due to the closure of schools or when daycare is closed or unavailable for reasons related to COVID-19. The childcare provision of the Act applies to children under the age of 18 unless the child is over 18 years old and incapable of self-care due to a mental or physical disability.

This is an expansion of the FMLA to include childcare that is not specifically health-related to the employee or their immediate family members. It is also the first time that employers have been required to pay their employees when the reason for absence from work or the inability to work is due to lack of childcare or due to school closure.
Employers can file a claim for a payroll tax credit for payment of leave to offset the costs of providing such leave pursuant to FFCRA, providing that they have the specific documentation from employees supporting their eligibility for benefits.

Employers should require that the employee complete documentation indicating the reason for leave, name, and age of the child that needs care. Information should also be provided to include the name of the school, childcare, or childcare provider that has closed or become unavailable. Employers can also request certification that no other person will be providing or can provide care for the child during the period that the employee is receiving paid leave. Employees must certify that no other suitable caretaker is available, such as a co-parent, co-guardian, or the usual childcare provider. If the child is over 14 years old and needs care during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care for this older child. The employer can also inquire as to whether the leave will be intermittent or continuous.

The Department of Labor has not released any standardized leave request forms to be utilized in these circumstances. Some employers, however, have prepared and are using their own leave request forms to both facilitate leave requests and to track these requests for eligibility in anticipation of filing for the payroll tax credit. This emergency childcare leave provision remains in effect until December 31, 2020, and will likely continue to raise leave issues for employers and employees with school-age children as schools are not currently expected to reopen in the fall with the same past operation practices.

The Center for Disease Control has issued guidelines for the reopening of schools to include desks placed at six feet apart; mandatory wearing of cloth masks; closing of all communal areas and the installation of sneeze guards. Schools continue to explore multiple possibilities including partial re-opening, remote at homeschooling; staggered starts; half-day sessions; alternative day attendance; delayed start of the school year; change in school locations; elimination of busing, and smaller class numbers to comply with mandated social distancing practices. Any changes to the school day or school operations will likely result in more employee leave requests pursuant to FFRCA as parents of school-age children will struggle with a lack of childcare in this unprecedented, constantly changing, and unpredictable pandemic era.


Alex Gertsburg is a managing partner at Gertsburg Licata.  He may be reached at (216) 573-6000 or at [email protected].

Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A, and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.

This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.

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