Wrestling with Paid Sick Leave for Both Parents When Schools Close for Pandemic

With schools closed for the COVID-19 pandemic, both parents in two-parent households may want to stay home while shelter-in-place orders are in effect. Will they be eligible for monetary relief and protection under new sweeping federal legislation? The answer is especially critical if both work for the same employer.

What the FFCRA Covers

The Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect April 1, 2020. It provides monetary relief and protection to American workers through the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Among many other things, the FFCRA will provide reimbursement, by way of tax credits, to private employers with fewer than 500 employees for paid sick leave they pay out to their workers.

In part, the FFCRA provides two weeks (up to 80 hours) of paid sick leave if an employee is unable to work because of a bona fide need to care for an individual subject to quarantine (under a federal, state, or local government order or based on a healthcare provider’s advice) or a minor child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. The leave is supposed to be paid at two-thirds the employee’s regular rate of pay.

Suppose Family Has Only One Child

To qualify for the emergency relief, an employee must show no other suitable person is available to care for the child. So, under the FFCRA, if a family has only one child, only one of the two parents would be entitled to the paid sick leave.

If the father is available to stay at home and care for the child, he is entitled to the paid sick leave. In that instance, the mother would not be entitled to paid leave because the father is available.

More Complicated Scenarios

Are there any circumstances when both parents would be entitled to paid sick leave under the FFCRA? The short answer is, it depends. An employee must be able to perform work for the employer “but for” the need to care for a son or daughter. In other words, if the employer doesn’t have work for the employee to do, he may not take the paid leave.

Further, an employee may take paid sick leave to care for a child only when he actually is caring for the child. If there is one child, both parents may not be actually caring for the child at the same time. According to the back-ground guidance provided under the FFCRA, an employee typically doesn’t need to take the leave if another suitable individual, like another parent, guardian, or the usual childcare provider (such as a grandparent), is available to provide the care and meet the child’s needs.

If there are two or more children, however, an employee may be able to show one parent needs to care for each child. For example, if the family has a newborn child and a toddler, both parents are likely needed to care for the two children. Both parents could demonstrate they are needed and therefore entitled to paid leave.

You may need to address the situations on a case-by-case analysis. For example, if the family has a 15-year-old and a 13-year-old, it will be harder to prove both parents are needed to care for the two children. In that scenario, absent some unique circumstances, it’s likely only one parent would be entitled to paid sick leave.

Penalties for Failing to Provide Paid Sick Leave

Under the EPSLA, employers that don’t provide the required paid sick leave are considered to have failed to pay minimum wages in violation of the federal Fair Labor Standards Act (FLSA). They’re subject to the enforcement proceedings described in the FLSA. In addition, the EPSLA provides employees with protection from adverse actions taken by employers:

• Employers may not discharge, discipline, or otherwise discriminate against an employee who takes paid sick leave under the EPSLA.
• They also may not retaliate against an employee who files a complaint under (or relating to) the EPSLA, institutes any proceeding under the Act, or testifies in any such proceeding.

Employers violating the prohibitions are considered to have breached the FLSA and will be subject to the penalties described in the Act. The EPSLA also authorizes the government to investigate and gather data to ensure compliance with the Act in the same manner as authorized by the FLSA.

Bottom Line

These are exceptionally trying times for both employers and employees. Revenue is down, and you want to keep your business afloat. Payroll and benefits costs are real. Employees, on the other hand, need to feed their families, and many are out of work through no fault of their own.

While schools are closed, both parents may want to stay home and take care of their child or children. If the family has only one child, however, only one parent would be entitled to paid sick leave under the emergency relief legislation. For households with two or more children, whether both parents are entitled to paid sick leave will depend on the unique circumstances each family faces.

This article, slightly modified to note recent updates, was featured in the June issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.