Coronavirus and Schools: Guidance on Leave Requests
As schools begin to ramp up plans for remote instruction, ranging from continuing enrichment and maintenance to full-blown mandatory instruction of new material, the interplay of existing and new leave laws is emerging as a potentially vexing area. Some issues seem easy to reconcile, others much less so.
Prior to March 13, 2020, nearly all school districts had some employees who were already on leave, for a variety of reasons. A number of those employees are now asserting that while participation in brick and mortar instruction is not possible, they are capable of performing the duties of remote instruction. While it behooves our clients to request documentation from a medical provider clearing the employee to provide remote instruction, if such documentation is provided, we agree that those employees may “return to work” and resume paid status. This may also require school districts to make some reasonable accommodations to permit that employee to perform her duties.
However, the new Emergency Family Medical Leave Extension Act (EMFLEA) adds a complication. Since EMFLEA is paid leave, albeit with a cap, we anticipate that some employees may seek to move from their existing unpaid FMLA to paid EMFLEA leave. As a threshold issue, school districts should decide what standards will apply to all requests for EMFLEA leave. We believe that districts are entitled to ask for a specific articulation from an employee seeking leave as to why the presence of children makes them unable to telework. An example of standards might be: 1) a single parent of a child under 2 years of age; 2) multiple children under 10 years of age; or, 3) a child with a disability. To be clear, this example is not based on any guidance from the Department of Labor – to date, the only input from the DOL is to clarify that if the employer allows telework to occur in flexible hours, then the leave is only available if the employee cannot perform any telework. Furthermore, enforcing any standard will be challenging. We suggest requiring that an application for EMFLEA leave include what amounts to an affidavit, and we further suggest including in the request for documentation something to the effect that statements made by the employee are made subject 42 Pa.C.S.A. Sec. 4904 which makes it a crime to make an unsworn falsification to a public official performing her duties. If it turns out that an employee misrepresented the basis for leave, then discipline may be appropriate.
Ultimately, whatever standards you do adopt should be applicable to everyone. Thus, if someone is already on other leave, but has presented something from a medical professional “clearing” them to telework, that same employee may be eligible for EMFLEA leave, but only if they meet the standard you have developed. As a side note, remember that EMFLEA leave only applies if the employee cannot telework because their son or daughter is home due to a school closure, childcare facility closure or childcare provider unavailability as a result of COVID-19. For parents on maternity leave, by definition they have elected not to utilize a childcare provider and thus would ineligible for this leave.
We are also aware that an argument is circulating that a school employee who qualifies for Emergency Paid Leave and/or EMFLEA will be entitled to full pay, rather than the cap set forth in the FFCRA, by virtue of the fact that Act 13 of 2020 (the amendments to the Pennsylvania School Code passed last week) states that no employee “shall receive more or less compensation than the employee would otherwise have been entitled to receive from the school entity had the pandemic of 2020 not occurred.” While it is an intriguing argument, we believe Act 13 will not be interpreted that way. We think the intent of Act 13 was to basically return school districts to as close to normal as possible. Teaching is expected to occur, essential staff are still needed, and employees will continue to be paid. Leave will still be available, but under the same terms and conditions as usual. In other words, we think the analysis of the “but for the pandemic of 2020” causation will come down to common sense. Perhaps this is overly optimistic, but for other reasons which we would be happy to discuss with our clients individually, we still recommend that any request for leave under the Emergency Paid Leave or EMFLEA be capped at the statutory limits in the FFCRA. Employees may elect to use other paid sick time if they wish.
Finally, a post-script to Monday’s post-script. Within hours of our last guidance, the DOL issued new FAQs regarding EMFLEA. One of those Answers indicates that DOL takes the position that employees are only eligible for a total of 12 weeks for any FMLA leave in a given year. For EMFLEA, an employee need only have been employed for 30 days, and, of course, 10 weeks of EMFLEA leave can be paid, but if an employee has already used FMLA leave, that employee is only entitled to the difference between 12 weeks and time already used under FMLA. As a client of ours remarked yesterday, “it’s like building an airplane while flying”. That is often what if feels like, and we will continue to stay abreast of what state and federal agencies tell us on these issues. As always, feel free to call us to discuss any issues you may have.