Child on Summer Break? Summer Camp Closed? No Available Child Care? You May be Eligible for a Paid Leave of Absence.

They say hindsight is 2020, and when we look back at 2020, many working parents will be grateful for the time we got to spend at home with our kids while shelter-in-place orders were in effect. But as orders begin to lift, and businesses reopen, working parents will face many different obstacles – Is there any leave I qualify for now that my child is on summer break? What if my care provider is high risk and afraid to watch my child? What if my child’s usual summer programs remain closed? You may be eligible for a paid leave of absence.

By now, you have likely heard of the Families First Coronavirus Response Act (“FFCRA”), a temporary federal law passed by Congress in response to the COVID-19 pandemic. Effective April 1, 2020 through December 31, 2020, the FFCRA requires all private and most public employers with less than 500 employees to provide Paid Sick Leave and/or Family Leave for certain qualifying reasons, including for employees to care for their child if their child’s school or place of care is closed or the child’s care provider is unavailable for reasons related to the pandemic (the “Child Care Qualifying Reason”).

Am I Eligible for Paid Leave Under the Child Care Qualifying Reason?

To determine whether you are eligible, it is important to understand the following definitions:

  • Child means your biological, adopted, or foster child, stepchild, legal ward, or a child of a person standing “in loco parentis” (meaning “in the place of a parent”), who is under 18 years old. Child also includes one who is over 18 years old and is incapable of self-care due to a mental or physical disability.
  • School means a nonprofit elementary or secondary school, including public charter schools, up to 12th grade.
  • Closed means the physical location where your child received instruction or care is closed, even if all or some instruction is being provided online.
  • Place of Care means any physical location where your child receives care while you are at work. This includes day cares, preschools, before and after school programs, summer camps, summer enrichment programs, schools, homes, and respite care.
  • Child Care Provider includes nearly anyone who cares for your child including paid individuals like nannies, au pairs, and babysitters, and those who provide childcare at no cost like family members, friends, or neighbors.

Eligibility under the Child Care Qualifying Reason is extremely broad, and chances are, if your usual childcare is unavailable because of the pandemic, you will qualify for paid leave under the FFCRA.

How Much Paid Leave Can I Get for the Child Care Qualifying Reason?

If you are eligible under the Child Care Qualifying Reason, you are entitled to up to 80 hours of Paid Sick Leave, paid at 2/3 your regular rate of pay (which varies depending on full-time, part-time, or irregular schedules), capped at $200 per day and up to $2,000 total, regardless of how long you have worked for the employer. If your employer agrees, you may be able to supplement the remaining 1/3 pay with any accrued vacation, sick, or paid time off under your employer’s policies – but your employer may not require that you use your existing leave entitlements in place of Paid Sick Leave. That is because Paid Sick Leave under the FFCRA is in addition to any vacation, sick, paid time off, or other paid leave entitlements already provided by your employer or under other Federal, State, or local law.

If you are eligible under the Child Care Qualifying Reason, you are also entitled to up to ten additional weeks of Family Leave, which is also paid at 2/3 your regular rate of pay (which varies depending on full-time, part-time, or irregular schedules), capped at $200 per day and up to $10,000 total, if you have worked at least 30 days for the employer. During the ten weeks, your employer may require that you exhaust any accrued vacation or paid time off, but they will have to pay you the full amount that you are entitled to under their policy.

Further, you can use the Family Leave intermittently, only while your typical childcare is unavailable, if you and your employer agree to a schedule. For example, if your neighbor usually watches your child on Monday, Wednesday, and Friday, and your child’s grandmother usually watches your child on Tuesday and Thursday but only your child’s grandmother is unavailable for care because she is high risk for COVID-19, you can take your Family Leave only on Tuesdays and Thursdays and work the remaining days if your employer agrees to that schedule.

How Do I Request Paid Leave for the Child Care Qualifying Reason?

To get Paid Sick Leave and/or Family Leave under the Child Care Qualifying Reason, you will need to provide your employer, either orally or in writing, with the following information:

  • Your name;
  • Date(s) of requested leave;
  • Reason for leave and a statement that you are unable to work because of this reason;
  • Name of your child;
  • Name of the school, place of care, or child’s care provider that is unavailable; and
  • A statement that no other suitable person is available to care for your child. Note that this generally means a co-parent or co-guardian will not also be able to take paid leave for the Child Care Qualifying Reason because if they do so, then there will be another suitable person available to care for your child.

You may also be required to fill out certain IRS forms if your employer so requests.

Do I Have a Right to Return to Work After Paid Leave for the Child Care Qualifying Reason?

Generally, yes you have the right to return to work to the same or an equivalent job as you had before you took leave. Your employer is prohibited from firing, disciplining, or otherwise discriminating against you because you took Paid Sick Leave or Family Leave. That said, you are not protected from employment actions that would have happened regardless of whether you took leave. For example, your employer can close your worksite or lay you off for legitimate business reasons, such as profit losses during the pandemic, if your employer can prove you would have been laid off even if you had not taken leave.

What if I Work for a Small Business that Has Been Hit Hard Financially by the Pandemic?

Economic realities right now may disqualify you from your rights under the Child Care Qualifying Reason of the FFCRA. First, if your employer has less than 50 employees, it may qualify for a small business exemption from providing Paid Sick Leave or Family Leave if doing so would jeopardize the viability of its business. To claim the exemption, an authorized officer of the business must determine only one of the following:

  • That providing the paid leave would cause the business to cease operating;
  • That the absence of the employee requesting leave would entail substantial risk to the business’s financial health or operational capabilities because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
  • That there are not sufficient workers who are able, willing, qualified, and available to perform the labor and services provided by the employee requesting leave, which labor and services are needed for the business to operate at minimal capacity.

Further, if your employer has less than 25 employees, and it provided you with leave under the Child Care Qualifying Reason, it may be exempt from returning you to work if it can show:

  • Your position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during your leave;
  • Your employer made reasonable efforts to restore you to the same or an equivalent position;
  • Your employer makes reasonable efforts to contact you if an equivalent position becomes available; and
  • Your employer continues to make reasonable efforts to contact you for one year after your leave concludes.

What to Do if You Believe Your Rights are Being Violated

If you qualify for paid leave under the Child Care Qualifying Reason and believe your employer is violating your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 468-5222 to learn more about how we may be able to support your claim

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