Labor & Employment Alert: Paid Sick Leave / Expanded FMLA The School Year Comes to an End – Now What? | Brouse McDowell | Ohio Law Firm

Labor & Employment Alert: Paid Sick Leave / Expanded FMLA The School Year Comes to an End – Now What?

By Stephen P. Bond on May 13, 2020

You’ve had time to work through weeks of leave under the federal paid sick leave and expanded FMLA programs, created in response to the Coronavirus. One of the official reasons for which benefits are allowed is that an employee stays home to care for a child whose school has been closed due to the virus; and employees may or may not have taken advantage of those benefits.

But, now the school year officially comes to an end, not because of the virus but, as the school does every year, for summer break. Can an employee who has used this benefit for the last several weeks while school was out continue to use this “excuse” once the school year ends? Or, can an employee who has not used these benefits before, now assert a right to stay home and care for a child because school is out for the year? In the latest guidance recently issued by the U.S. Department of Labor, the answer is “no,” school being out for summer break will normally not qualify for the federal leave programs:

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

Note that, in answering one question, the Labor Department opens a new “loophole.” That is, anticipate that, instead of relying on school, an employee may assert that he/she planned to have his/her child attend summer camp, or some similar activity, which would have provided the necessary child care, but the program has been cancelled due to the virus. That “excuse” would qualify to trigger leave benefits under the federal programs.

For over 100 years Brouse McDowell has assisted clients in getting through difficult times and helping them solve problems. We have extensive experience in protecting employees, instilling customer confidence, and leveraging business opportunities. Do not hesitate to reach out to one of our attorneys for assistance. Remember, we are all in this together, and it will take the collective effort of each of us to emerge from this temporary crisis.

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