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If you choose virtual learning for your kids, you’ll likely be disqualified from expanded paid leave from the government

September 1, 2020, 8:15 PM UTC

With the coronavirus pandemic still raging, schools across the country have given parents the option: send your child back to in-person school a few days a week or keep your student at home. As the school year starts, families have made the decision based on their jobs, access to childcare, and level of comfort in placing their child in a group.

Recently released guidance from the Department of Labor, however, places a new burden on parents who have taken the most cautious route. If a school is open for any in-person instruction, but families have opted to keep their kids at home for entirely virtual learning, those parents will no longer be eligible for emergency paid leave for childcare as outlined in the Families First Coronavirus Response Act.

The Department of Labor clarified its interpretation of the legislation in a paragraph posted Thursday on its Frequently Asked Questions page about the law. “You are not eligible to take paid leave under the FFCRA because your child’s school is not ‘closed’ due to COVID–19 related reasons; it is open for your child to attend,” the department wrote. “FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave.”

“The new rule balances protecting workers while ensuring workers have jobs to return to,” a Department of Labor spokesperson said when asked for further comment.

The restriction applies to the law’s two weeks of paid sick leave to care for a child whose school is closed or unavailable and to 10 weeks of paid expanded family and medical leave for an employee unable to work because of school closures. Both types of leave are at two-thirds of the employee’s rate of pay.

If a school offers hybrid in-person and virtual learning, parents are eligible for this paid leave on those days when their child is not permitted to attend in-person instruction. Only parents making an entirely at-home schooling choice are excluded.

“People have really valid reasons for staying home even if the hybrid options are available,” says Vasu Reddy, senior policy counsel for workplace programs at the National Partnership for Women & Families. “This is going to affect the people who have immunocompromised family members at home, immunocompromised kids themselves, people who work in health care and other high-risk industries. Those are going to be the people most affected by this restrictive interpretation.”

This restriction is based on the Department of Labor’s interpretation of the law—not any specific guidelines created by lawmakers about the difference in eligibility based on in-person or virtual instruction. (The Families First Coronavirus Response Act was passed in March, when lawmakers likely weren’t yet thinking about the logistics of the next school year, Reddy says.)

Most American workers are already excluded from this federally mandated leave because the law exempts large companies with more than 500 employees and some small businesses. The National Partnership estimates that 106 million workers—or about 83% of the American workforce—are not covered.

Less than 20% of American employees do qualify for this expanded paid leave, and the DOL’s recent interpretation cuts down on that number further. “They’re already bearing the brunt of this pandemic,” Reddy says of the people most likely to choose full-time virtual instruction. “We need to be making things easier for them, not harder.”