Since schools are starting up in San Diego but most children are currently starting the year in various forms of online learning, employers must remember their obligations with respect to employees who request leave to care for their child whose “place of care” is closed for COVID-19-related reasons.

The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid. FFCRA leave may be taken if the employee is unable to work or telework due to the need to care for his or her child whose “place of care” is closed as a result of COVID-19.

The leave must be offered to employees who are able to work (including telework, if offered), but who cannot work because they must care for children whose schools or places of care are currently closed.  If telework is offered, the employee should explain why he or she is unable to telework. Of note, the IRS in its guidance indicates that if the child is over 14, the employee should also explain that special circumstances exist requiring the employee to provide care.

“Place of care” means the physical location where care is provided while the employee is normally working. Examples of such places of care are: day care facilities, preschools, before-school and after-school programs, schools, summer camps, summer enrichment programs, and respite care programs. (Note, the Department of Labor has stated that a school that is offering virtual learning is still closed for purposes of the FFCRA).

There is a limited exemption for private employers with fewer than 50 employees from having to provide emergency family and medical leave expansion act (EFMLEA) or the emergency paid sick leave act (EPSLA) leave for school or childcare closures when the imposition of such leave requirements would jeopardize the ongoing viability of the business.

The FFCRA allows for this exemption if an authorized officer of the business has determined that:

Providing the leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;”

“The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or”

“There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.”

This is a rather burdensome showing on the part of the employer to invoke the exception. Essentially the employer must show that granting leave to this particular employee would jeopardize the viability of its business. This is a case-by-case analysis that must be documented, and the determination must be made by an officer of the company. The employer is not required to send such documentation to the DOL, but should retain the records in its files for four years.

Remember, this exception is only for the EFMLEA and EPSLA leave for situations in which the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions. If you plan on relying on this exception to deny the otherwise-mandated leave, it is strongly recommended that you contact and discuss the matter with an attorney before doing so, as the exemption will be narrowly construed.  If you need any assistance with an employee’s request or demand for leave, please reach out to NavBat right away.