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I am “Working” from Home and There is No One to Teach the Kids Here? Help!

Governor Sununu has ordered New Hampshire schools to “transition to temporary remote learning” until May 4, 2020. The Governor has also ordered the Department of Education to assist school districts in preparing instructional plans for students. However, until very recently, there has been little government attention given to an obvious issue with “remote learning”: working parents who have been instantly conscripted into taking on an additional work role, that of front-line, teaching assistant in the new remote learning world.

So, what if you are trying to work your two jobs (one very new), but you have more than one child, K – 6, or one child with special needs, and there is just not enough of you to go around? On March 31, 2020, the U.S. Department of Labor, interpreting the Federal Families First Coronavirus Response Act [FFCRA], offered some advice.

The FFCRA permits a parent to take “emergency family leave” from work if he or she is “unable to work,” remotely or otherwise, due to a need to care for a child whose school has been closed due to COVID-19 (for more details on the leave benefit afforded by FFCRA, see https://www.nhlawoffice.com/our-blogs/2020/march/families-first-coronavirus-response-act-ffcra-cr/.)

Until the US DOL issued its very recent guidance, it was unclear what “unable to work,” remotely, meant under the FFCRA and therefore the extent to which remote working parents would be eligible for the leave. The new guidance instructs that “unable to work” remotely means that “your employer has work for you and [the need to care for a child due to school closure] prevents you from being able to perform that work by means of telework.” However, “if you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.” Emphasis added. Similarly, you are able to work and are not eligible for FFCRA leave if you can telework “while caring for your child.”

So leave eligibility for the remote working parent appears to depend on several factors including: the individual child and his or her needs; the type of work that there is to be performed; and the schedule under which the work can feasibly be performed. The DOL guidance also establishes that an employer may require an employee to submit a statement as to these factors to establish leave eligibility.

If you have a question regarding leave eligibility, or another employment law related matter, please contact us for a free consultation.

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