As promised, we have kept a close eye on federal guidance discussing the recent federal Families First Coronavirus Response Act (the “FFCRA”). As you most likely have heard, the FFCRA created two new types of employer-paid leave related to the COVID-19 pandemic: (1) emergency paid sick leave; and (2) emergency family and medical leave.
On Thursday evening (3/26), the U.S. Department of Labor issued further non-binding guidance here. We carefully reviewed the additional information, and came to one conclusion . . . .
This needs to be discussed in a KSB Webinar!
So, back by popular demand, we are hosting an informational webinar and we will answer your specific, school-related questions related to the FFCRA and your response to the COVID-19 pandemic.
When: Tuesday, March 31, 2020, at 10:00 am CDT
Where: Zoom (click on THIS LINK)
The recent federal guidance also provided some details regarding administration of this federal leave raising important choices for school districts. Here are five things public school districts and ESUs should consider as you plan for employee requests for this leave (which could come as early as Wednesday).
1. Are you going to allow employees taking FFCRA leave to supplement with paid leave?
The majority of your employees who technically qualify for any leave under the FFCRA will not qualify for full pay. If employees are taking leave because their children’s school or daycare is closed, the amount of the pay to the employees is capped at two-thirds of the greater of (a) the employee’s regular rate of pay, (b) the federal minimum wage ($7.25), or (c) the minimum wage of the state in which the employer is located ($9.00 for Nebraska). At two-thirds of whichever rate applies, there will likely be a gap between the amount of pay received under the FFCRA-paid leave and an employee’s typical full pay.
The federal guidance indicates that employees are not entitled to use their accrued paid leave at the same time as taking paid leave under the FFCRA. If, and only if, an employer agrees to allow it, then an employee can choose to use accrued paid leave to make up for the one-third of normal earnings that are excluded from much of the FFCRA paid leave. So, school districts and ESUs should think about how they want to handle requests to supplement paid FFCRA leave with other accrued leave.
2. Are you going to allow employees to take FFCRA leave intermittently?
Whether an employee is teleworking or working at the employee’s usual worksite, an employee can take emergency family and medical leave intermittently only when the employer agrees to it. Otherwise, the Department of Labor’s guidance indicates that an employee cannot unilaterally demand to take emergency family and medical leave intermittently. So, an employee asking to work only three days per week or only half days is not entitled to do so unless the employer agrees.
3. How flexible are you going to be regarding working hours, including remote work or telework?
One of the conditions triggering eligibility for paid emergency family and medical leave is when an employee is “unable to work (or telework) due to a need for leave to care for” the employee’s child (under 18) because the child’s school or daycare is closed as a result of a COVID-19 emergency. So, a critical issue for employers is how to determine whether an employee is truly “unable” to telework.
The recent guidance does not really explain how to make that determination. But, the guidance does suggest that if an employee and an employer agree that the employee can work his or her normal hours outside of the employee’s regularly scheduled hours (such as early in the morning or late at night), then the employee is able to work and emergency family and medical leave is not appropriate. Therefore, according to the guidance you cannot force the employee to take modified hours.
As a result, it is prudent for school districts and ESUs to consider providing additional flexibility, particularly in terms of timeframes, for employees to fulfill ongoing duties while working remotely. If your employees agree to continue working with the additional flexibility that you offer, then the employees are able to work and would not be eligible for the emergency family and medical leave.
4. How are you going to treat employees who are not working at all, and who are not getting paid, because their worksite is closed?
Some of your employees may not qualify for any paid leave under FFCRA. The federal guidance indicates that employees do not qualify for paid emergency sick leave or paid emergency family and medical leave if (a) the employee’s worksite is closed, (b) the employer sent the employee home and stopped paying the employee, and (c) because the employer does not have any work for the employee to do. “This is true whether [the] employer closes [the employee’s] worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.”
School districts and ESUs should think about responding to requests from these employees who have been sent home, are not performing any services, and are not getting paid at all. Similarly, if an employee is not working or working irregular hours but still getting paid pursuant to a work agreement or board declaration, those work agreements may require employees to take leave available to them (like FFCRA leave) instead of receiving pay under the return to work agreement. (KSB Note: we will cover this in detail during our webinar.)
5. What are you going to do about teachers who choose to stop working and take leave under the FFCRA?
As you likely know, Nebraska has a statute that provides: "In case of epidemic sickness prevailing to such an extent that the school or schools in any school district shall be closed, teachers shall be paid their usual salaries in full for such time as the school or schools shall be closed.” Neb. Rev. Stat. § 79-8,106 (emphasis added).
If a teacher elects to stop working (e.g., stop creating online enrichment materials, stop being available for online chats with parents and students, stop communicating and collaborating with educational colleagues, etc.) in favor of taking leave under the FFCRA, the school district will have to decide how to address that teacher’s compensation.
Under the caregiver leave in the FFCRA, the amount of pay would be capped at two-thirds of the teacher’s regular rate of pay. In other words, taking FFCRA leave could represent a decrease in the amount of compensation that a teacher takes home in comparison to their usual salary received for performing teaching duties. Also, as noted above, employers are not obligated to allow employees to supplement this two-thirds pay with their own paid leave.
A “usual” salary regularly depends upon the teacher fulfilling his or her duties. For example, if last fall a teacher took extended FMLA leave (which before the FFCRA was always unpaid), the teacher could have supplemented his or her compensation by taking paid leave pursuant to the employment agreement (i.e., the negotiated agreement). But, absent accrued paid leave, if any, the teacher’s “usual” salary went to $0 during the period of leave because the teacher was not performing any teaching duties.
An argument can certainly be made that a teacher who elects to take leave under the FFCRA to care for a minor child(ren)--rather than continuing to perform teaching duties--has chosen to receive two-thirds of his or her regular rate of pay rather than his or her “full” salary.
The recent federal guidance offers conceptual support for this position. The U.S. Department of Labor indicates that an employee is not entitled to take paid leave pursuant to an employment agreement concurrently with FFCRA leave. An employee can supplement the compensation received under FFCRA leave with paid leave (e.g., PTO, vacation, sick leave, etc.) only with the employer’s agreement. With this issue in mind, it is prudent for school districts to at least consider how they will treat compensation for a teacher who elects to stop performing teaching duties in favor of taking FFCRA leave.
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As you can see, even this limited number of issues raises a lot of questions and decisions for you to make. We hope that you join us on Tuesday, March 31, 2020, at 10:00 am CST for Q&A with KSB where we can address these issues and answer your other questions. We look forward to seeing you (remotely, of course!).