When Congress passed the Families First Coronavirus Response Act (FFCRA) last spring, the major issue facing professional corporations was when to return to work and how to do so safely. As summer has turned to fall, the primary issue now facing many professional corporations is how to address employees who cannot work their normal schedules because their children are attending classes online.
The answer will depend on the circumstances of your organization and the needs of your employees. Below are just some (but not all) potential options for professional corporations to consider when addressing return-to-school concerns.
Paid Leave/Expanded FMLA
The Department of Labor has recently clarified that employees may use the two weeks of paid sick leave and expanded FMLA to care for their minor children who are attending classes remotely because of COVID-19. (See our earlier blog post for a description of the eligibility requirements for paid leave and expanded FMLA). Under the FFCRA, qualifying employers must provide paid leave/expanded FMLA to those employees who request the leave and are eligible for it.
For employees who may be able to work part-time, the Department of Labor encourages (but does not currently require) voluntary arrangements to combine in person work/telework and intermittent leave. In this circumstance, the employee would continue to work part-time, and would receive paid leave/FMLA for the time spent away from work to care for children.
The paid leave/FMLA option allows your employees to continue to receive a paycheck and benefits. Also, if properly documented, the employer receives a tax credit for the paid leave. The drawback (for the employee) is that they only receive 2/3 of their pay while on paid leave/FMLA. Finally, paid leave/expanded FMLA is set to expire at the end of the year, so this option won’t be around if remote learning continues into 2021.
Adjusted Schedules/Remote Work
Another option is to adjust your employees’ schedules and expand remote work capabilities. This is a good option for professional corporations that are able to make the necessary internal adjustments. This option is easier to administer than paid leave because the employee’s status with the organization doesn’t change if they are working their normal schedule remotely. (Employees who are able to work their normal schedules remotely also don’t qualify for paid sick leave/expanded FMLA leave).
On the other hand, revising schedules may be easier said than done. And, employees may have difficulty completing tasks at home while watching over young children. Finally, you will need to be consistent and fair in terms of how you are adjusting schedules so that employees who don’t have minor children are not overburdened.
Some professional corporations may have the means to subsidize childcare for the duration of the remote school year. In this circumstance, the professional corporation provides the employee with a subsidized payment to assist with childcare costs.
This option allows employees to keep working their normal schedule without having to pay out-of-pocket for childcare. But the reality is that not all professional corporations have the means to make the subsidized payments. This option may work for some, but certainly not all professional corporations.
Paid/Unpaid Time Off
Employees may want to use their existing paid time off (PTO) for childcare reasons. You may also consider allowing employees to take unpaid time off if PTO/paid leave/expanded FMLA leave is exhausted. You also have the option to require your employees to use their PTO concurrently with expanded FMLA (after exhausting the two weeks of paid sick leave).
The PTO option works best for employees facing a short-term duration of leave, or employees who have childcare available for most days of the week. The advantage of using PTO is that the employee will continue to get paid at their regular rate. For unpaid time off, the advantage is the certainty of returning to work after the remote learning period ends. The drawback for the employer is that only a few employees can use PTO or unpaid time off at a time without affecting productivity. Also, unpaid leave may affect the employee’s eligibility for benefits and/or their exemption status.
The bottom line is that there is no one-size-fits-all solution to address employees who cannot work their normal schedule due to remote learning. Your plan must be tailored to your organization and the needs of your employees. Consult with your legal counsel if you have any further questions regarding your return-to-school plan.