The Common Law

COVID and paid time off to watch kids not in school

"The Common Law" continues to address your COVID-19 legal questions. You ask. We'll do our best to answer for as long as we remain in a period of uncertainty. Lots of recent questions relating to paid leave for folks that have to stay at home because they have to care for others (especially kids) due to COVID.

The school for my two kids hasn't reopened. Everything is online. I need to stay at home to watch them. Can I still get paid if I stay home?

Possibly. The Families First Coronavirus Response Act (FFCRA) requires some employers to provide employees with paid sick leave or expanded family and medical leave due to COVID. The FFCRA applies through December 31, 2020.

If the employee is sick, they are eligible for two weeks (up to 80 hours) of paid sick leave at the regular rate of pay. If the employee must stay home to care for another person due to COVID, including a child whose school is closed due to COVID, the employee is eligible for two weeks (up to 80 hours) of paid sick leave at two-thirds the employee's regular rate of pay. The Department of Labor states that an employee who is unable to work due to a bona fide need for leave to care for a child whose school is closed may also be eligible for an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee's regular rate. Be sure to read the U.S. Department of Labor's website as not all employers are required to comply with the FFCRA (see next question).

I've asked my employer for paid time off to care for my school-age child because their school is closed. The company is a small start-up. My boss told me the company doesn't have to pay for COVID-related time off to watch school kids. Is that right?

It could be. It depends on the size of the start-up company. An employer with fewer than 50 employees (typically called a small business) is exempt from providing paid sick leave for employee/parents that need to care for kids that can't attend school due to COVID when doing so would jeopardize the viability of the small business as a going concern.

The small business can claim this exemption if an authorized office of the business determines any of the following: A) Providing paid sick leave would result in the small business's expenses and financial obligations exceeding business revenues; B) the absence of the employee(s) would create substantial risk to the financial health or operational capabilities of the small business; or C) there are not sufficient alternative workers who are able, willing, and qualified to perform the labor or services provided by the employee.

I think my employer is required to provide paid leave due to COVID so I can care for my kid who can't attend school right now. If my job continues to say no, what can I do?

The Department of Labor encourages you to raise your concerns directly with your employer. You may want to consider submitting a written request. If those efforts continue to fail, and you believe the employer's reason for declining to provide paid leave is improper, you may call 1-866-487-9243 or follow instructions on the Department of Labor's website (www.dol.gov) to submit a complaint.

If I take paid leave to care for my child who isn't in school, does that count against other types of paid leave that I would typically get?

No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided by your employer's existing company policy and/or allowed by federal, state, or local law.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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