The Holidays are Stressful but Scheduling Childcare May Not Have to Be with Recent Changes to the FMLA

As the country heads into the second half of fall fraught with holiday breaks and the prospect of a second wave of COVID-19 on the horizon, child-care concerns remain prevalent. The holiday season brings vast uncertainty about school closings and the availability of other childcare options, normally, but this year that uncertainty is ratcheted up by adding in COVID-19. Therefore, it seems appropriate to discuss the Families First Coronavirus Response Act (“FFCRA”) and how it could help some employees navigate the season as our country continues to slog through this pandemic. The FFCRA was passed in mid-March of 2020 to try and provide relief to employees. This aid was partly carried out through the “Emergency Family and Medical Leave Expansion Act” or “expansion act,” which expands the Family Medical Leave Act (“FMLA”) to allow for some employees to take leave to care for their children. Below, there is a brief discussion on who gets to take this new child-care leave, how this new child-care leave operates, and what that means for employees who are attempting to take advantage of the new provisions.

The expansion act, as the name suggests, expands FMLA coverage for those employees who need to care for their children in response to a COVID-19 emergency. As long as the leave is related to a “public health emergency” and the employee is unable to work or telework because they need to look after their children, then they may be eligible for the child-care leave, subject to a couple of quick notes. The “public health emergency” language, somewhat obviously, refers to a COVID-19 health emergency declared by the government. The second part referring to why an employee cannot work is limited by employees who must care for their children (18 years old or younger) because the school the children attend is closed, or their regular child-care option is unavailable. The health emergency requirements and the limitations above set out why an employee can take this new child-care leave, but how this leave operates is contained in different section. Thankfully, the section of expansion we are concerned with i.e. the Public Health Emergency Leave portion is labeled accordingly. This portion is the one that governs how FMLA is applied differently when it comes to employees requesting the new child-care leave.

For the first change, Congress altered the definition of who is an “eligible employee” i.e. which employees can utilize this new child-care leave. The definition was expanded to include employees who have been employed for at least 30 calendar days by an employer as opposed to regular FMLA eligibility which can require a year of employment. On the bright side, more employees are covered through this first amendment, but on the less than bright side, the second amendment increases the number of employers that are not required to provide this child-care leave. In that amendment, the normal FMLA requirement that loops in employers with 50 or more employees was altered to leave out most small employers. Specifically, only employers who have “fewer than 500 employees” have to provide the new child-care leave. As a result, this second amendment counteracts the first by increasing the number of employers who can deny employees this child-care leave.

The other two modifications relate to how much child-care leave an employee is entitled to take and whether it is paid. For the first 10 days of this leave, an employer can choose to make it unpaid. However, after that 10 days is over, an employer must provide paid leave for the rest of the days requested. Under the FMLA, an employer does not have to provide paid leave at all. Additionally, an employee taking child-care leave may elect to use their accrued vacation time, paid time off, or sick/medical leave as a substitute for the unpaid leave. This is a big plus compared to the original FMLA requirements because the originals allow an employer to require an employee to use their accrued paid time first. Therefore, if an employee chooses to take child-care leave, the changes to the FMLA allow the employee to have a choice on whether or not to use their accrued leave.

In conclusion, this information will be important while we struggle our way through holiday schedule changes and the erratic availability of childcare options. To give a short summary, FFCRA did increase which employees are allowed to take child-care leave, but that positive is mitigated by exempting all but larger employers from having to provide this leave. Employees who are eligible for this childcare leave also have to be cognizant of when the leave is paid (after 10 days) and what their options are with using or not using their accrued leave. These four amendments may only be relevant for a short time period going forward, but in these uncertain times knowing when you can take leave under the FMLA to care for children will be key in planning for the future.

Paige Melendez is a 2020 graduate of The University of Texas School of Law. She is awaiting her Bar exam results.

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