When many cities and states instituted ‘stay at home’ restrictions back in the spring, Congress passed the Families First Coronavirus Response Act (FFCRA). Provisions of that act, which apply through the end of 2020, require most employers with fewer than 500 employees to provide 12 weeks of leave to eligible employees in the event of school closures. However, this leave under the FFCRA only applies if an employee cannot work from home.
With the school year beginning again and virtually no end in sight for the COVID-19 pandemic, employers need to consider options including remote work arrangements, flexible work hours or employee leave.
Continue Remote Work
If an employee is able to work remotely, the leave requirements of the FFCRA do not apply. Remote work can entail certain expenses for employers, as Illinois law requires that if an employer requires an employee to use equipment or services (like a computer, cell phone or the internet for remote access, or otherwise), the employer is obligated to pay the employee the pro rata cost of those items, upon submission of reimbursement requests. Employers should also provide their employees with other needed supplies, like paper, pens, etc.
For many employers, the remote work option is effective, but, for some, particularly in the service and manufacturing industries, this is not a viable option.
Offer Flexible Work Hours/Schedules
Some employers will find that allowing employees to perform their work during non-traditional work hours, or in different blocks of time such as before or after school, nights or on weekends, when the parent does not need to supervise e-learning or may have other care available.
Deadlines and task-based goals will be important in this model, while also allowing the employee the flexibility to get the assigned work done. This may work well in both remote or in-person working situations and may alleviate the need for leave by the employee, avoiding incomplete work for the business. Care should be taken, however, to abide by any applicable overtime rules.
Provide Leave to Eligible Employees
In the event remote working is not an option, the employer may need to give the employee up to 12 weeks of FFCRA leave. In general, FFCRA leave is available for parents to care for children under 14 if no other care is available. For children over 14, the parent must explain the need for the parent to stay home.
There is an exception for the employer requirement to provide leave for employers of less than 50 employees, when the leave would interfere with the viability of the business.
Various portions of the FFCRA provide some paid leave, some unpaid leave and some leave to be paid at 66% of the regular rate of pay with a $200/day cap. There are tax credits available for certain leaves.
Cook County and the City of Chicago have similar leave requirements. Under the City of Chicago’s Paid Sick Leave act, up to 80 hours of the leave must be paid.
A number of issues can affect this eligibility:
- If the school or day care is open but the employee’s child is not able to attend due to a limitation on enrollees or a staggered schedule (alternating days or weeks), the school is deemed to be closed for purposes of the FFCRA leave provisions. If the parent chooses not to send the child back, leave may not be available.
- If the child has a medical condition which makes attending an open school risky, the employer should consider a leave request carefully, as, although that is not covered by the FFCRA, it may be covered by another statute or ordinance.
- If employees took leave under the FFCRA in the spring, they may still be entitled to use up to the remainder of their 12 allotted weeks this fall.
Carefully Weigh Options
Although COVID-19 continues to be a financial stressor for most businesses, it is also an emotional and financial stressor for the employees of those businesses. Businesses need to weigh their options to accommodate employees who are caring for school age children who are at home so that the employee and the business can support each other.
COVID-19 employment related questions continue to be multi-faceted, and updated guidance is being issued on a regular basis. It is important for employers to stay ahead of their expanded obligations as the situation rapidly evolves.
Deborah Jo Soehlig advises clients on many aspects of running their businesses, including addressing sensitive employment questions.