Keeping Your Job When Your Kids Go Back to School

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This post has been written and sponsored by Attorney Katherine Mazaheri at Mazaheri Law Firm, to provide valuable information to our readers!

Mazaheri Law FirmEmployee Rights Under the Families First Coronavirus Response Act During Covid-19

In Oklahoma, school has begun for some and the anxiety has set in.  As mothers, we try to convince ourselves that this school year is going to be as smooth as possible while the momma-bear instinct is to make sure that you are doing what is right for your children in uncertain circumstances with COVID-19. As an employment lawyer, I talk to employees that need clarity on what their rights are in the workplace, what they can legally ask for, and what employers are required to do based on the law. 

In this article, I will highlight hypothetical situations you may come across regarding employment and COVID-19 while your children go back to school. Disclaimer: Each situation can be interpreted differently depending on the specific facts of your case. You should consult with an employment attorney regarding your specific case before reaching a conclusion whether you have a case or not.

First, an overview of the Families First Coronavirus Response Act (FFCRA) which came in effect from April 1, 2020 and will remain in effect until December 31, 2020. The FFCRA applies to employers that employ under 500 employees. Under this Act, you may be entitled to paid sick leave for up to two weeks, and/or emergency paid family medical leave (also referred to as EFMLA) for up to an additional 10 weeks if you are an eligible employee and have a COVID-19 related reason for that leave. Under the FFCRA, an eligible employer MUST pay emergency sick leave for employees that qualify if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

OR

4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Now that you know the law, let me walk you through an employment lawyer’s analysis of the statute and how it applies to REAL life circumstances.

  1. Your child gets sick from COVID-19, and you must stay home to care for your child and cannot work. (Section (4) scenario)
    • You are entitled to up to 80 hours (2 weeks) of paid sick leave at 2/3 your regular rate of pay capped at $200/day (Emergency Paid Sick Leave)
    • If your child has a positive COVID-19 test and you need additional time off work, you may be entitled (if you are eligible) to FMLA, but this will likely not be paid unless you have additional benefits that cover that time off.
    • At the end of the leave, you are restored to your original position or one equivalent to it.
    • If you can telework or work from home, FFCRA does not apply to you. It only applies in circumstances where you cannot work.
  1. Your child gets sick from the flu, and you must stay home to care for your child and cannot work from home. (FFCRA only applies to COVID-related sickness)
    • You are not entitled to Emergency Paid Sick Leave, but you may use your PTO if you have any available.
    • You do not qualify for Emergency FMLA, but if your employer regularly offers FMLA, you may be eligible for FMLA (just not paid).
  1. The school suspects your child of having COVID-19 and sends your child home. You cannot telework.
    • The school may refuse a child who is suspected of having COVID-19 from attending school.
    • The FFCRA’s use of “physical location” when describing what “closed” means in regard to schools indicates that you would NOT be entitled to paid leave under the FFCRA if the school was physically open to students and your child was sent home, so under Section (5) above, you may not qualify.
    • However, you may qualify under Section (4) IF you take your child to get a COVID-19 test immediately and a medical provider advises them to quarantine. In that case, you would be covered by FFCRA for the remaining time it takes to get the negative COVID-19 results, or, if the child tests positive, up to 80 hours of paid sick leave at 2/3 your regular rate of pay capped at $200/day (Emergency Paid Sick Leave). 
    • You are limited to the amount of EFMLA you can take by the amount of days you have already taken of FMLA. So if you have already used your work time under FMLA for the year, you are not entitled to extra time under the Act, but you may still be entitled to Emergency Paid Leave for up to 80 hours.
  1. A school shutdown requires online class, and you cannot work from home. No one is sick. However, you may have used all your FMLA leave for the year because of an illness for an immediate family member. (Section 5 scenario)
    • If the “physical location” of the school is closed, even if online learning is available, the school is considered closed for FFCRA purposes. 
    • You are entitled to up to 80 hours of paid sick leave at 2/3 your regular rate of pay capped at $200/day (Emergency Paid Sick Leave).
    • In addition to EPSL, you may take up to 10 weeks of paid leave at 2/3 of your regular rate of pay capped at $200/day (Emergency FMLA)
    • At the end of the Emergency FMLA, you are restored to your original position or one equivalent to it.
    • If you have already used all FMLA leave for the year, you are not entitled to additional leave under EFMLA, however, you would still be entitled to Emergency Paid Sick Leave for up to 80 hours.
  1. Your child’s school is open part time on an A/B schedule. Your child has online class half the week and in-person class the other half of the week. You cannot telework during the days your child has online class.
    • You may be able to receive intermittent paid leave. Employers are not required to grant it, but the DOL encourages employers to be flexible and collaborate with employees.
    • You may be entitled to up to 80 hours of paid sick leave at 2/3 your regular rate of pay capped at $200/day (Emergency Paid Sick Leave). However, you must use PTO or Emergency Paid Sick Leave for the first two weeks, because the first ten days is unpaid under EFMLA.
    • In addition to EPSL, you may take up to 10 weeks of paid leave at 2/3 of your regular rate of pay capped at $200/day (Emergency FMLA)
    • At the end of the Emergency FMLA, you are restored to your original position or one equivalent to it.
  1. Your child’s school is offering the choice for online class or in-person attendance.
    • The FFCRA’s use of “physical location” when describing what “closed” means in regard to schools indicates that you would not be entitled to paid leave under the FFCRA if the school was physically open to students and you chose for your child to attend online class.
    • Unless your child has symptoms of COVID-19, and you take your child to get tested and a medical provider recommends the child quarantines, you will not be covered by FFRCA for childcare reasons due to your choice to keep them at home when the “physical location” is open. That said, you could use your remaining PTO or use regular FMLA with an eligible employer if you are an employee that qualifies.
  1. Your child is at a higher risk to contract COVID-19 and is taking online class. You cannot work from home.
    • The FFCRA’s use of “physical location” when describing what “closed” means in regard to schools indicates that you would not be entitled to paid leave under the FFCRA if the school was physically open to students and you chose for your child to attend online class.
    • Unless your child has symptoms of COVID, and you take your child to get tested and a medical provider recommends the child quarantines, you will not be covered by FFRCA for childcare reasons.
    • However, you may still be eligible for regular FMLA with an eligible employer if you are an employee that qualifies. It will not be paid, and you will have to use any PTO you have or take unpaid FMLA.

These are just a few of the scenarios I have gleaned from the Department of Labor’s comments, in thinking of real-life scenarios mommas who work may encounter.  Knowing your rights under the law can be an important step in knowing that even in 2020, you can still get paid while you are dealing with the unforeseen issue of COVID-19. If you have any additional questions or need a consultation, please do not hesitate to call Mazaheri Law Firm at 405-414-2222.


Katherine Mazaheri-Franze is an Oklahoma City “law mom” of 4 children of a blended, multiracial, and multilingual family.  She has 5 year old boy/girl twins, a 7 year old, and a step-daughter currently attending the University of Oklahoma.

During the day, she works full time as Founder and Managing Attorney of the Mazaheri Law Firm and at night she’s an insta-pot home chef, boogie-monster eradicator, and trying to stay awake long enough to occasionally be the tooth fairy.

A portion of Katherine’s trial practice is devoted to assisting families in times of crisis. She assists clients with divorce, custody and visitation, property division, victim protective orders, and step-parent adoptions. Along with divorce, she assists couples in negotiation of pre-nuptial agreements and protection of assets.

Her heart for social justice has influenced her passion for employment litigation involving claims of wrongful discharge, sexual harassment/assault, employment discrimination (based on race, age, gender, sexual orientation, pregnancy, national origin, and disability), retaliation, as well as disputes involving wage and hour matters, medical leave, confidentiality and non-compete agreements, employee handbook and company policy violations and breaches of employment agreements.  As the Founder and Managing Attorney of the Mazaheri Law Firm she is proud of leading an all-female team of attorneys who for over a decade have gained a powerful reputation for taking on cases that attack various social injustices leading to extensive recoveries for clients with compassion and integrity.

 

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