As we discussed at length in yesterday’s webinar (you can find that here), school district employees will become eligible for paid leave under the federal Families First Coronavirus Response Act (FFCRA) today, April 1, 2020. As you can see below, even after the lawyers talked for 90 minutes, people still had a lot of questions.
At the request of several KSB clients, we have prepared FFCRA leave application forms and a “fact sheet” -- which is a short, concise summary of FFCRA to use like a quick “desk reference.” Again, if you work exclusively with another law firm, you should contact those attorneys for FFCRA legal advice so that if you are challenged on any of these issues you are working with the firm who will defend you. KSB clients who would like to access the FFCRA “fact sheet” and application forms should e-mail Shari (shari@ksbschoollaw.com) to ask for them. As with everything during this crazy COVID-19 time, much of the content of forms and other documents provided constitutes legal advice. We are charging a nominal fee ($150) for the fact sheet and the application forms, both to defray the cost to individual districts and to be consistent with the attorney-client relationship between KSB and our clients.
As part of our efforts to strike the balance between individualized legal advice (which we charge for) and providing as much information as we can during this crisis (which we are providing for free), we’ve taken the questions from our FFCRA ZOOM and provided short answers below. These were excellent questions, and we hope they are useful as you continue to trudge through FFCRA and its related issues.
Questions and Answers from 3/30/20 KSB FFCRA Zoom
Question on Section 125 and Daycare. Can we use the change of status form to stop taking withdrawals from employees paychecks. That way they won't lose the money that they are not going to be using for daycare expenses for the rest of the year. Thanks.
Yes, if a school employee who is flexing money into a 125 account to pay for daycare wants to stop making that contribution they may do that, based on the fact that their daycare is closed. Normally employees can only elect contributions to a flexible spending account during the yearly open enrollment period. That includes elections for dependent care. There are exceptions -- you can make a change if you experience a "qualifying event." Those typically include things like, a change in marital status, a change in the number of dependents, a change in the age of your dependents mid-year, that sort of thing. There is an exception called "change in cost or coverage." This is designed to allow employees to change the amount of their election when employees switch daycare providers. Employees who want to change their election should contact the company that administers your school’s flexible spending account, and ask them if they will consider this as qualifying as a "change in cost or coverage" if they are just not paying daycare at all.
If the district is paying full wages during the closure, does this law affect the district?
Yes, it might. If you are expecting staff to perform any duties, your employees could seek paid leave under FFCRA if they qualify under the Act.
Is this FFCRA leave salary and benefits or just salaries ?
Employees who qualify for paid FFCRA leave also qualify to have the employer continue their benefits. If there is an employee contribution toward benefits, the employer is entitled to collect that contribution or withhold it from the employee’s FFCRA leave pay.
Does a Directive Health Measure constitute grounds for EPSL?
No, a DHM standing alone does not qualify an employee for emergency paid sick leave.
May an employee use FFCRA to care for a grandchild while school and/or daycare is closed?
An employee is only able take FFCRA leave to care for a grandchild if the employee is acting in the role of that child’s parent. This was made clear in the Q&A document at question 40.
On FMLA and Emergency Sick Leave do we take out retirement and taxes?
Our best advice at this point is to withhold both unless or until we get formal guidance from the Nebraska Public Employees’ Retirement System or the IRS to the contrary.
Can any employee with a school age child can access 80 hours of leave?
It depends. Having a school-age child, by itself, is not enough to qualify an employee for the two weeks’ worth of emergency paid sick leave under the FFCRA. To be eligible for the 80 hours of emergency paid sick leave, the employee must be unable to work--due to a “bona fide” need to care for their child--because their child’s school or daycare is closed or unavailable due to COVID-19 precautions. That would be at ⅔ pay under FFCRA, even if the employee was eligible.
Our School is paying our employees working or not working. With the agreement they can be called in to do other things at anytime. Does this COVID pay affect us?
Yes, the leave under the FFCRA may affect you. As long as eligible employees are expected to perform duties, then they may be eligible for FFCRA leave, assuming they have a qualifying reason for leave. Most return to work agreements that we have seen expect some performance from employees, whether that is agreeing to perform duties as assigned or agreeing to come back to work, or both. The mere existence of a return to work agreement does not preclude an employee from taking FFCRA leave. If you sent some employees home when school closed and you haven’t expected them to work and you haven’t paid them, then the federal guidance indicates that they may not receive FFCRA leave.
If we have a Para who is currently not working (we are only paying those who show up), and has not yet filed for unemployment, can they apply for the eFMLA and get their 2/3 pay?
If the para has refused work prior to April 1, he/she has functionally quit their position and the district could take the position that he/she is not eligible for FFCRA leave. If the district would allow this para to work, but he/she cannot because of the need to care for children (of school age, whose school has closed due to COVID-19, etc.), then the para could qualify for FFCRA leave.
Teachers that are on maternity leave, and are asking to come back to work as they are not required to come into school. Are we setting ourselves up for issues later on?
If a teacher who was on maternity leave can now perform the essential functions of her position, we believe she is entitled to come off leave and perform enrichment/instruction/educational duties for the district.
Is there a form that the DOL will provide for staff to use to apply for ESL or EFLSA?
Not yet. KSB does have forms that we will provide to clients who request them. There is a charge for those forms, as we explained above.
What if we have a classified employee who refuses to come to work because they are scared of COVID-19? They have not signed a return to work agreement and they have used all of their PTO so they are taking "no pay" days temporarily.
Being scared of COVID-19 is not a valid reason to use FFCRA leave. If the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then he or she would be eligible for emergency paid sick leave. Self-quarantine does not qualify an employee for emergency family and medical leave. If this employee has effectively resigned prior to April 1 by refusing to work, then he or she would not be eligible for FFCRA leave.
We are planning on placing the Employee rights poster where we have all of our other posters, but I was reading that we need to email it to all staff as well or post it on our website, I was told posting it in school is enough. Please let me know where I really need to post this. Thanks,
You are required to post the Employee Rights Poster (which you can download here) in the same place you post other labor posters and notices. You do not have to send it out to employees or post it on your website. We do have a few districts that have asked us to help them draft a memorandum to send to all of their employees informing them of their FFCRA rights. If you would like a copy of that memorandum, please let one of us know.
Teachers are required to come to school one day a week and due to illness or health concerns ask to not come in. Do we ask them to use PTO, Emergency Sick Leave, or treat it like they are there due to 79-8,106?
If teachers indicate that they cannot perform the duties of their job due to illness or health concerns, then they need to use leave available to them to excuse performance of their duties. That may take the form of sick days, personal leave, PTO, vacation, or dock days, depending on the terms of your negotiated agreement. Vague claims of “illness” or “health concerns'' are insufficient to demonstrate a right to take leave under the FFCRA. This employee would also not be entitled to take FFCRA leave intermittently, unless you authorize that as the employer.
We are not paying our classified employees if they are not working. We have offered work to all classified employees. We are paying for their insurance. If they apply for unemployment, and get paid. Does that mean they are no longer an employee and we stop paying for their insurance??
Yes, an employee who files for full unemployment under these circumstances has functionally quit by signaling to you they do not intend to perform their duties. Some employees may be eligible for partial unemployment benefits if their pay has been reduced due to COVID-19. Eligibility under FFCRA for those employees will be based on the unique facts and COVID-19 closure and pay decisions made by your district or ESU.
What does it mean when they say school is "closed"? Isn't every school closed at this time?
For purposes of FFCRA, Neb. Rev. Stat. 79-8,106, and likely for special education issues, your school district is “closed” if you are not bringing students into your building for instructional purposes.
Can both husband and wife take the leave at the same time?
Great question. Probably, although there is no guidance that directly answers this question.
What if an employee has decided not to sign the return to work agreement ?
We would advise treating this like a resignation and not provide FFCRA leave. For FFCRA eligibility purposes, employees who decline to sign the agreement have indicated they do not intend to perform duties when asked during the closure.
We did not sign R2W agreements. Offered work and Classified staff chose to take it or leave it. Had a para say I have to watch my kids, it would be a wash for me to work. It would cost me as much or more than what you will pay me. Can they come in tomorrow and ask for EFMLA, because they haven't taken the work offered due to the need to watch their kids?
We would view this employee as voluntarily quitting his/her employment prior to the effective date of the FFCRA and would not treat them as eligible for FFCRA leave.
Is an employee eligible for EFMLA if the employee has underlying health conditions and is advised by a physician to stay home? The employee is a para that is currently reporting to the building to work.
No. There is only one basis for an employee to take emergency family and medical leave and it is not triggered by the employee’s own illness or underlying health conditions. If the employee’s health care provider has advised the employee to self-quarantine due to concerns related to COVID-19, then that employee would only be eligible for up to two weeks’ worth of emergency paid sick leave.
If an employee, let’s say a classified staff member, comes in on the 3rd, and says that they couldn’t work from the 1st of April on to the 3rd. Can they apply for the 1st one even though they applied late. The reason I ask this is it could give us time to plan before payroll comes due on April 20th. I also want to be honest with my classified staff in providing them options.
Yes, we would advise you to retroact this application for FFCRA pay, as long as they were otherwise eligible during those days.
EFMLA can’t start until April 1st - correct? So what leave can they use before that?
Before April 1 classified employees will have to rely on their boards’ prior decisions to grant paid leave, place them on a return to work agreement or other arrangements for them to be paid. Otherwise they can apply for and receive unemployment benefits based on the relaxed unemployment standards established by the Governor’s Executive Order.
Our last day of school was March 16. We had a long term substitute teacher for a teacher who was on maternity leave. The long term substitute wants paid until April 3. The teacher decided to come back on March 25 to do the packets for the enrichment for her students. Does the substitute get paid until April 3 or March 25 when the teacher came back and made packets?
We would not pay this sub for any time after March 25. There is a strong argument that he/she is not entitled to be paid for any time after March 16.
Can a bus driver who has not been driving since the shutdown be eligible for either type of leave? They are paid when they run a route, not otherwise…
There is an argument that this employee has been furloughed and therefore is not entitled to any FFCRA leave.
We are allowing paras to work in the building. I have a para that said that her husband works during the day. We are offering them work during the evening (copying, painting, etc.) Can they take leave if we offer those options to our staff, like the teachers? She has two kids at home.
If you and your para agree that your para will work her normal number of hours, but outside of her normally scheduled hours (for instance early in the morning or late at night), then the para is able to work and FFCRA leave is not necessary. If you and the para do not agree that she will work these modified hours, she will most likely qualify for leave under the FFCRA at two-thirds of her regular pay. You may permit supplementing, but it is not required.
Also 12 week OR the conclusion of school, which is the end of our para contracts?
Classified staff who qualify would be entitled to FFCRA leave until the end of their contracted school year and not over the summer, unless they are expected to perform duties over the summer. FMLA leave, including emergency family and medical leave, can only be taken when an employee is expected to work.
If a 9 month para takes EFMLA leave on April 1 - does that mean they could get paid for 12 full weeks even though they are only 9 month employees?
No. They would be paid only through the end of their anticipated contract, a/k/a the time during which they would be expected to perform their duties.
What if we have a classified employee who refuses to come to work because they are scared of COVID-19? They have not signed a return to work agreement and they have used all of their PTO so they are taking "no pay" days temporarily.
This employee is not entitled to FFCRA leave. They have functionally quit and may apply for unemployment benefits. You may also be entitled to discontinue benefits if they receive any from the district.
Can employees apply for unemployment if they have been cut to half the working hours?
Yes, under the Executive Order for unemployment benefits, employees can apply for benefits for pay they have lost (in whole or in part) due to COVID-19. We believe they would be treated as a part-time employee under FFCRA for purposes of calculating their FFCRA eligibility and benefits, if any.
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If you have additional questions about FFCRA leave (and really, how can you not have questions), you should contact your school district’s attorney. Karen, Steve, Bobby, Coady and Jordan are all working from home, but we will be happy to visit with you about your questions on FFCRA or any other matter.