On August 27, The Department of Labor threaded a needle with some very fine distinctions in it's latest updates to their FFCRA FAQ page as it regards the current start of the school year and the applicability of the FFCRA's Family Leave. (Answers #98, 99, 100)
FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If a school offers both in-person and online learning options and a parent chooses the latter, the parent may not take paid leave under the Families First Coronavirus Response Act (FFCRA).
That said, parents may use FFCRA leave on days when children are not permitted to attend school due to hybrid in-person and online arrangements, Under so called "Hybrid" models, where students physically attend school on some days, but virtually on others, only those days on which the school is not physically open to them are eligible for protected leave because the building is "effectively closed" to that child.
Parents may also take leave under the FFCRA if a school begins the year remotely with the intent to evaluate the circumstances and possibly reopen for in-person learning later on. If the school reopens, a parent's eligibility for leave "will depend on the particulars of the school's operations." This means the applicability of FFCRA leave is fact dependent and fluid.
For instance, parents requesting a virtual option for their child's learning when in-school options may be available would not be eligible for leave while the school remained open, but would likely be eligible if the school subsequently closes, although the FAQ doesn't directly state this.
Flexibility will be increasingly important as the pandemic continues and the potential that some employees find their FFCRA leave entitlement dwindling. Given the general lack of predictability of the course of the pandemic, what to expect as the school year begins, and how institutions may respond as events unfold as the school year progresses toward the expiration of the FFCRA leave after December 31, open channels of communication with your employees becomes very important.
Another issue for Massachusetts employers to consider is the applicability of the Massachusetts Paid Family and Medical leave on January 1 to their employees' individual situations.
These are complex times, requiring an understanding of what employees are entitled to by law and by company policy, but also by making an assessment of how the company can demonstrate understanding for what is surely a most anxiety provoking and stressful time.