KBS Reference Desk: Updated FFCRA Guidance

Q:       A teacher at our District was allowed to use two weeks of leave in December under the Families First Coronavirus Response Act (FFCRA) because her childcare provider was closed due to COVID-19. The teacher is scheduled to be paid for the two weeks of leave during our January payroll cycle. Do we still have to pay the teacher for that leave even though the FFCRA has now expired?

 A:        Yes. Although the FFCRA expired on December 31, 2020, employers are still required to pay employees for approved leave taken during the effective period.

 The Families First Coronavirus Response Act, which became effective on April 1, 2020, required certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA leave requirements expired on December 31, 2020. The Department of Labor issued additional guidance the same day to make clear that unused leave from the previous year does not roll over into the current year. However, the Department of Labor also clarified that it will continue to enforce the FFCRA for leave taken (or requested) during the effective period of April 1, 2020 to December 31, 2020. Therefore, in the above hypothetical, the District would be required to pay the teacher for the two weeks of leave in December even though the FFCRA has now expired.

 Although school districts are no longer required to provide FFCRA leave, a school board can choose to extend available paid leave by board resolution. Board action is required to justify the additional compensation not contemplated at the initiation of employment for the current school year. Providing additional paid leave to all employees who are sick as a result of an epidemic and who have exhausted available state and local leave serves the public purposes of protecting students and staff and maintaining morale. This establishes the required educational purpose and refutes any argument that the additional compensation is an impermissible gift of public funds.

 When crafting your resolution, districts are not required to provide the exact same FFCRA benefits/eligibility, but instead may create localized leave options that are tailored to suit the district’s specific needs. For instance, a board could extend additional leave eligibility to full-time employees only and not part-time, and/or exclude substitutes. A board could elect to provide paid leave only to “sick” employees and define “sick” to include “those advised by a healthcare provider to self-quarantine,” thereby eliminating leave for the care of a family member or when a child’s school or daycare is closed. Exhaustion of all personal leave (state and local) could be an additional requirement added, not within the original statute. A popular revision also includes shortening the original leave benefit from 10 days to a lesser number or at a percentage less than 100%. The Texas Association of School Boards has published customizable sample templates for passing such resolutions, which are available here.

 Of course, there other considerations to take into account when an employee requests leave, such as the employee’s rights and the employer’s obligations under the Family Medical Leave Act and other relevant laws or policies. For specific questions or additional information regarding employee leave, please contact your local school law attorney.

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