It’s August in Oklahoma. Families would ordinarily be buying school clothes and supplies, getting their children ready to head back to school. But there is nothing ordinary about 2020.
Oklahoma has no statewide mandate regarding schools. Across the state, school districts, charter schools, and private schools are making decisions – even as of this writing – as to whether and how to start the school year. Some schools have moved up their start date while others have pushed it back. Some schools will have in-person instruction five days a week, while others will have students in-person only on certain days, and others will have distance learning exclusively. Even for schools offering in-person instruction, many have suspended their afterschool care programs. And, of course, every parent has been told there could be changes.
While this is an extraordinary challenge and disruption for the parents and children of Oklahoma, it is likewise a challenge and disruption for Oklahoma employers. No article can address all of the scenarios Oklahoma families will face as they navigate these issues, but we wanted to touch upon the topic in hopes of preparing employers.
Tips for Employers during Back-to-School Time
1. Be Generally Aware of the School Situations in your Community
No one expects you to know what is happening with every school; that would be impossible. But be generally aware of what is happening with at least the major school systems where you have employees. Understand that your employees may have students in other schools which may operate differently. Again, there is no “one system” in Oklahoma, which is making this even more complicated.
2. Invite Communication
Reach out to your employees now – if you have not already – to let them know that you understand back-to-school will be stressful. Invite your employees to visit with the appropriate persons (e.g., supervisor, HR) if there are issues. Do not limit this to the people you *think* will have issues. You may not realize that, during COVID-19, people’s circumstances have changed. You may not know that someone is raising a child who previously was not, for example. Be overly inclusive.
3. Be Understanding and Collaborative
These issues are facing every person in Oklahoma responsible for a minor child. These issues were not caused by your employee. These issues cannot be easily solved by your employee. This is not something the employee did “wrong.” Hopefully, through collaboration with the employee, solutions can be found to allow the employee to be both a good parent and a good employee. That is the goal.
4. One Size Does Not Fit All
This article will not proscribe an answer because what will work for one workplace or one employee may not work for another. In fact, what works today may not work tomorrow. That is the nature of the world today. Be open to discussing options. You need to get work done while your employee needs to parent their child and needs to keep their job. Your challenge is to work with the employee to make all those things happen.
Employers of fewer than 500 employees (and most public employers) are covered by the Families First Coronavirus Response Act (FFCRA), which provides two forms of leave from April 1 through December 31, 2020. Today, we won’t rehash all of the details but simply focus on back-to-school issues.
The FFCRA provides that if your employee is unable to work or telework because the employee is needed to care for their minor child because their school “has been closed … due to” COVID-19, then the employee is eligible for leave under both the Paid Sick Leave and under the Expanded Family and Medical Leave Act. To recap, the employee could be eligible for: (1) Paid Sick Leave of up to 80 hours for a full-time employee, paid at 2/3 of their regular wages capped at $200.00 per day ($2,000.00 total); and (2) Expanded Family and Medical Leave Act Leave for up to 12 weeks, the first 2 weeks unpaid and the last 10 weeks paid at 2/3 of their regular wages capped at $200.00 per day ($10,000.00 total). [Note: The FMLA portion runs concurrently with any other FMLA leave the employee may have used; it is not “in addition” to other forms of FMLA leave. That means employees who have already utilized their allotted 12 weeks of leave for a serious health condition of themselves or a family member may not be eligible for additional leave due to COVID-19 school reasons.]
The issue for many employers right now is how these FFCRA leave entitlements apply to the employee whose child’s school is offering distance learning or a hybrid schedule (attending in-person instruction less than five days per week).
Under either scenario, is that school “closed” due to COVID-19? It is reasonable to argue the school is closed for the child on any day the child is not permitted to attend in-person. The Department of Labor has issued this FAQ:
70. 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.
Although not specifically addressing all the ways in which Oklahoma schools are opening, the intent seems clear – if the school is closed for in-person instruction to a specific student due to COVID-19, the FFCRA is available to the parent of that child if the parent meets the other eligibility requirements.
The employee must be unable to work or telework because the employee is needed to care for the child whose school is closed. For example, in most situations, a parent would not be needed to “care for” a high schooler who is distance learning. In another example, if the employee has a stay-at-home spouse who could care for the child, the employee would not be eligible for the leave.
As you will recall, the FFCRA payments are eligible for a payroll tax credit. In order to claim such a credit with regard to a school closing, the employer should gather and retain the following information:
1. The employee’s name
2. The date or dates for which leave is requested
3. A statement of the reason (which in this case would be that the school is closed or doing virtual learning)
4. A statement that the employee is unable to work or telework due to the reason in No. 3.
With regard to school closings, the IRS guidance states that:
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
Another complication arises because the FFCRA leave needed for school closings may be intermittent. The child may be in school five days a week but the afterschool program may be closed such that the parent/employee must pick up the child at 3:00 p.m. each day. Or the child may be attending school only on Tuesdays and Thursday, but remain home on all other days. The FFCRA does not require employers to allow intermittent leave, but it is encouraged. This requires a good deal of collaboration with your employees. Will they be able to work/telework during certain hours? Will their child need help with distance learning during the day or will the parent/employee be able to attend to work responsibilities? Can you adjust a work schedule to meet the parent/employee’s schedule and still get the work done?
More questions than answers.
In addition to the law, don’t forget your policies. Your employee may have leave available under your policies in the Employee Handbook or elsewhere.
And before we go, a quick reminder not to discriminate or retaliate against your employees. In Oklahoma, the status of being a “parent” is not a protected classification in and of itself. Be mindful to treat everyone as fairly and consistently as you can. Does that mean everyone will be treated identically? Not necessarily. For example, you might allow parents to telework or to take leave this Fall that you might not allow to other employees. Is that identical? No. Is that discrimination? No. However, if you only allow female parents leave but not male parents leave, that could be discrimination. You would be treating men less favorably than women.
Regardless of when and how this moment in time passes, employers must work through it. Take the opportunity to model to your employees your resiliency and desire for a positive work environment.
Wishing you all well.