On August 27, 2020, the U.S. Department of Labor (DOL) published three new "Return to School" FAQs concerning the federal Families First Coronavirus Response Act (FFCRA). Under the FFCRA, employees can use up to 12 or 14 weeks of job-protected leave if they need to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to coronavirus precautions. Previously, the DOL published FAQs that addressed closures during the last school year, followed by guidance on summer camp and program closures. Its latest FAQs address issues employers and employees are facing during the current school year.

First, the DOL addresses hybrid learning in which a school offers in-person instruction on certain days and remote learning on other days. The DOL confirms leave is available, but only on remote-learning days. For FFCRA purposes, the Department considers a school "closed" on days children cannot attend class in person.

Next, the DOL discusses situations in which schools provide parents a choice regarding how their children will learn, i.e., the child can attend in-person instruction or participate remotely. If parents choose the remote-learning option, e.g., because they have concerns a child might contract, and bring home to the family, COVID-19, the DOL says FFCRA leave is not available because the school is open for the child to attend. However, the DOL notes employees might be able to use up to 80 hours of FFCRA emergency paid sick leave if the child is not in school due to a quarantine or isolation order or because a health care provider advises the child to self-isolate or self-quarantine due to concerns related to COVID-19.

Finally, the agency considers the "wait and see" approach many schools have taken to the current school year. If a school offers only remote learning when the school year starts, FFCRA leave is available. However, if the school later transitions to in-person instruction exclusively, leave will not be available. Similarly, as noted above, if the school moves to a hybrid-learning environment, employees can use leave only on remote-instruction days.

Many grappled with the issue of whether a school could be "closed" for FFCRA purposes yet "open" for education purposes. These new FAQs provide much-needed clarification to employers and employees concerning how the FFCRA operates under current (and varying) learning conditions. When in-person learning is available—whether as a choice or the only choice—employees cannot use FFCRA leave because a school is "open." However, when in-person learning is not available—at all or on specific days—the school is "closed" and employees can use FFCRA leave.