Dealing with School Closures Due to COVID-19
The Department of Labor’s rules regarding the Families First Coronavirus Response Act (FFCRA) have been updated as of September 16, 2020. This includes a significant change to the healthcare provider exemption and Job-protected leave.
Table of Contents
1
Introduction: The Child Care Problem
2
Finding Mutually Beneficial Solutions
3
Assess the Employee’s Situation
4
FFCRA Emergency Paid Leave
5
Approving a Leave of Absence
6
While Your Employee Is on Leave
7
Separating with an Employee Unable to Work Due to Child Care Needs
1
Introduction: The Child Care Problem
2
Finding Mutually Beneficial Solutions
3
Assess the Employee’s Situation
4
FFCRA Emergency Paid Leave
5
Approving a Leave of Absence
6
While Your Employee Is on Leave
7
Separating with an Employee Unable to Work Due to Child Care Needs
Introduction: The Child Care Problem
Child Care During the COVID-19 Pandemic
The next hurdle of the COVID-19 pandemic for business owners will be serious staffing issues due to child care needs.
If some of your current staff can’t work full time or at all, and the candidate pool is further limited than it already was due to a shortage of available child care options in your community, then no solution is going to be easy. A considerable percentage of our population will not be able to work because of child care issues in the coming weeks and months.
If you are in the dental or healthcare industries, we want to be very clear that we acknowledge the significant impact that lost productivity due to losing an employee, let alone someone in a clinical position, is going to have on your business. Losing a physician assistant, hygienist, or another clinical provider for even a day has a direct financial and patient-care impact on your business.
The good news is that, while not perfect, there are solutions and ways to support your business during this crisis by helping your team.
Employees Aren’t Using Lack of Child Care as an “Excuse”
Not being able to arrange care or schooling in the traditional manner is a serious issue, and it’s not your employee’s fault. We genuinely are not seeing employees trying to use this as an “excuse” for not working.
Many parents and employers alike are about to experience unavoidable financial hardships because one or more employees cannot work. And staying home to help homeschool their kids is typically not high on the list of things they’d rather be doing with their time.
Even if child care is open, not every parent will feel safe about sending their children there during the pandemic.
Children can be asymptomatic carriers of the virus, which is why the child care issue presents real concerns for the children themselves, as well as for their parents, their households, family members, and even for you, your team, and your patients.
Your Options as an Employer
Most employers are trying to work with their employees to find mutually beneficial solutions. In this guide, we will walk you through trying to find creative solutions to the child care issue, outline how to determine if any paid leave would apply in a given situation, and explain how to administer a paid or unpaid leave of absence.
Though this is a temporary problem, you will want to look for long-term solutions, because no one knows how all this is going to play out a month from now, let alone six months down the road.
As we work our way through this discussion, your goal is to get to the best outcome possible. In this case, that means making the best of what is possible rather than what feels most comfortable or convenient.
You can’t ignore the problem and expect your employees’ child care issues to go away magically, so you need to look for real solutions. Here’s an overview of the options we’ll be running through:
- An “outside-of-the-box” solution to help with this child care issue may not be ideal, but may help you make the best of the worst circumstances.
- Paid leave under the Families First Coronavirus Response Act (FFCRA) may or may not apply to your employee’s necessary absences.
- If an employee is able to work a reduced schedule, that may be the best case scenario for you. This would mean you aren’t completely down a staff member and you may be able to use your existing team to provide coverage.
- If FFCRA would apply, then they can work reduced hours while getting the same pay while you get a tax credit back for the FFCRA hours.
- If FFCRA won’t apply, or you are choosing not to use it, then they could work a reduced schedule and not get paid for any hours they can’t work.
- If the employee is unable to work at all for a period of time, you basically have 2 choices:
- Grant them a leave of absence from work. This could be partially paid through FFCRA, or be an unpaid leave. The goal would be to bring them back when they’re able to return.
- Separate from employment. You are able to let the employee know you can’t go that long without established staff, but they would be eligible for rehire when they become available again.
Keep this in mind — as employers and owners, as managers of our teams, and as a country, we will get through this together.
Finding Mutually Beneficial Solutions for Child Care
Introduction
No, it is not your responsibility to figure out child care and school solutions for your employees.
But, with so many people in your community facing the same problem, there may be solutions you can help facilitate. Your employees may be able to connect with other employees or those in their community to try to find solutions together. Here are some ideas:
Provide a Child Care Stipend
An employee may be too financially strained to hire a tutor or a babysitter to help with the kids every day. Individualized care costs more than group daycare, so, even if it is available, it may not be affordable.
Providing the employee with some financial assistance is a great way you can help. This is money out of your pocket, but the cost of helping with this expense may be far less than the price of losing an employee and trying to replace them in the current pandemic-impacted job market.
If this action can help you keep an income-generating team member on the job, it may be one to take seriously. We understand that there are limits to your ability to sustain this kind of support.
Support a Group Daycare or Schooling Arrangement
Since individualized care is going to be hard to find (and quite expensive), many parents are trying to work together to create their own classrooms and daycares.
If parents can pool financial resources, they may be able to get someone to provide care and school support to a small group of children. The initial obstacles include connecting with other parents, finding the right caregiver(s), and having access to an appropriate location.
Consider this: While you can choose to get directly involved if it makes sense, merely offering a daily stipend may be enough to encourage or enable your employee(s) to seek out a co-sharing or tutoring solution.
Provide Child Care Space at Work
Having kids come to work with their parents at a healthcare facility is not something we generally recommend as the child could get injured, misuse overheard patient information, or otherwise be a distraction.
But we’re not talking about a “bring your child to work” day. You may be able to dedicate a space within your office and place parameters around its use.
We know that one of the concerns with this solution is the liability it presents, and that some — if not most — states would consider this solution as something that qualifies for licensing and inspection.
If you are not willing to go through that process, there will be a level of risk that you would have to accept to implement such a solution at your business.
Assess the
Employee’s Situation
Clarify the Employee’s Ability to Work.
The current school and daycare situation will be stressful for both you and your employee.
Be sure to take a calm and measured approach so you can identify any solutions that may not be immediately obvious. We don’t have to tell you that COVID related “problems” are moving targets, too.
With the possibility that a child will have care for part of the week, or part of a day, or is old enough that they don’t necessarily need hands-on, around-the-clock, direct supervision, it makes it likely that some kind of solution can be found.
If this is the case, your employee may be able to work a reduced/remote schedule. Not ideal, but the staff is valuable right now.
Have your employee clearly identify to what extent they would be able to work in any capacity. We recommend allowing them to take into account both coming into the office and time they could work from home.
Also, take into account whether you need work done during specific hours. For example, you may have billing tasks that could be accomplished during evening or early morning hours when your team is typically not in the office.
As you discuss these possibilities with your employee, be sure you’re documenting your conversations so you have a record of the measures you took to try to make things work, as well as the limitations identified by the employee.
CEDR Members: Use the “Add a Note” function in your HR Vault to add confidential documentation to an employee’s file.
Not a CEDR Member and want to go HR Paperless? Sign up to unlock your FREE HR Vault account!
Working From Home
We know that you are going to be limited in what an employee could do from home, especially if they are typically involved in patient care. But, if there was ever a time to get creative, this is definitely it.
Some ideas on utilizing remote workers:
- Many administrative duties could be completed from home and even after hours when there may be a second parent or someone else to take care of children.
- Businesses are modifying their procedures to minimize contact in the office. Many are doing virtual patient check-ins that don’t require the employee to be in the office.
If you are a dental office and need help with virtual and paperless processes, we recommend looking into the OperaDDS Pre Screening, Paperless Forms, And Teledentistry Triage Kit, which integrates with your existing dental software.
NOTE: If you are one of our many non-dental members and know of a system you would recommend, please let us know so we can share those resources with others.
- Re-assign duties among the team so your in-office team can be focused and smaller while still providing everything you and your patients need while physically at work.
You won’t always be able to find a solution like this, and you’re not obligated to create a new position to accommodate someone’s child care needs.
But, be sure that you are identifying the work that needs to be done, as well as who can do what from where, and what tasks can be done from home.
This isn’t just us trying to help save your employee’s job — it’s a way to find new solutions to run your business with the valuable team members you’ve already invested your resources in.
For more on having employees work from home, please review our “Remote Work Checklist for Employers” here.
CEDR Members have a sample Remote Work Policy pre-loaded in their HR Vault, and can also find it in the CEDR Member’s Area.
Working a Reduced or Modified Schedule
Some employees will be able to work a reduced schedule in the office, from home, or some combination of both. We encourage you to see if this is an option for your employee. If you hired this individual to work full-time, a reduction in hours is not ideal but it is a solution that can be worked around in many situations.
However, many times businesses are able to work around a short-term reduction in hours by consolidating or reassigning tasks that usually get done when this person is out of the office.
Keeping your existing, trained, experienced employee while they work a modified work schedule may be more financially viable than spending time, money, and resources trying to find and train a replacement.
Keep in mind that, if you are a CEDR member, you have remote clocking built into your HR Vault. If you need help setting that system up, send an email to support@cedrsolutions.com.
If you are using the free version of that software, you can activate PTO & Time Tracking in your HR Vault here.
Paying an Employee That Is Working a Modified Schedule
Most of your employees are non-exempt, hourly employees. You’re generally only required to pay those employees for the time they spend working.
If your employee is paid on salary, we recommend that you reach out to our CEDR advisors so we can confirm how they are paid and classified and review the options for how to address the reduced schedule.
Employees who are working fewer hours due to child care needs may be eligible to receive paid time off under the Families First Coronavirus Response Act (FFCRA). Whether FFCRA applies to the absence depends on the reason why they are unable to work.
There is a difference between the child’s school being physically closed and only providing remote learning, the parent choosing a remote learning option, and a parent opting not to return their child to an open daycare.
We explain when FFCRA does and does not apply below, as well as when employers may be able to opt-out of FFCRA pay through an exemption. If you are going to provide FFCRA pay, see this section on how to determine the amount of pay.
Employees can use FFCRA on an intermittent basis, meaning you can apply the paid FFCRA leave time to the days/hours of their regular work schedule that they are unable to work due to child care needs.
CEDR Members have a sample FFCRA Intermittent Leave Approval Letter in the CEDR Member’s Area.
If FFCRA pay will not be provided, hourly, non-exempt employees only need to be paid for hours actually worked.
You should document any changes to the employee’s work schedule, position, job duties, or pay. Depending on your state regulations and the number of hours the employee is putting in, they may be able to collect partial unemployment benefits based on the federal government’s expansion of those benefits.
CEDR Members have a sample letter that confirms an employee’s schedule change in the CEDR Member’s Area.
Note once again that CEDR members and Free HR Vault subscribers can use CEDR’s integrated and robust time tracking system to designate which hours qualify for FFCRA reimbursement, making running payroll much more straightforward.
FFCRA Emergency Paid Leave
Determine if FFCRA Applies to the Employee’s Absence
If the employee is not able to work at all, or will be working a reduced schedule, your next step should be to consider whether FFCRA would apply to their absence.
The law provides for paid FFCRA leave if the employee is:
“Caring for their child if the child’s school or place of care is closed or the child’s care provider is unavailable due to a public health emergency.”
This will apply to many, but not all, of your employees’ schedule changes.
We’ve broken down how FFCRA works in various child care scenarios in the following chart, with links to DOL guidance if you want to read more.
Employee’s child care situation
Does FFCRA apply?
School/daycare is closed
Yes. See DOL FAQ 10. Note our understanding is that FFCRA would apply if the child’s usual place of care is closed, even if there are other open facilities in your area.
School/daycare is remote
Yes. See DOL FAQ 70
School gives the option of in-school or remote learning, and the family has chosen the remote option
No. The physical school is not “closed”; therefore FFCRA would not apply under the current DOL guidance. See DOL FAQ 99.
School/daycare is open, but the employee is choosing not to send their child to the facility and is instead keeping the child at home
No. FFCRA only applies if the physical facility is closed. See DOL FAQ 10 & DOL FAQ 70
Care provider is unavailable (i.e., family member who normally takes care of the child during the day)
Yes. See DOL FAQ 67 & 68
Temporary closure — the child is sent home for a few days due to temporary closure due to COVID related concerns
Yes. We believe this would qualify as a closure bringing FFCRA into play. See DOL FAQ 10 & DOL FAQ 70
Child temporarily unable to attend school/child care — the child must stay home for a few days because they or a household member is sick, was exposed, is being tested, etc.
Maybe. If the child has been told to quarantine by official ordinance or a health care provider (an employee is eligible for FFCRA if they are “…caring for an individual subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns”). See DOL FAQ 64-69
If FFCRA applies to a child care situation, then the employee is eligible to use a total of 2 weeks of FFCRA sick pay plus ten weeks of FFCRA family leave pay through the end of 2020.
Once this total of 12 weeks is used up, any additional time off for this reason can be unpaid. Because the employee is taking time off to care for another person, the paid leave can be at ⅔ their regular pay rate, which will be paid back to you through a tax reimbursement. See below for more detail.
If FFCRA does not apply to your employee’s situation, then you are not required to provide paid time. Any hours not worked, or any leave from work, can be unpaid unless the employee has accrued paid time off available.
You can also find a broader summary of the FFCRA here.
Decide if You Want to Use an Available FFCRA Exemption
If FFCRA does apply, you may be wondering if you really have to provide that paid time off.
If you are a small employer and/or a healthcare employer, the government has given you a number of “outs.” We do recommend providing FFCRA leave if you can (more on that here), but we know it’s not realistic for everyone.
Once again, we’ve put the most common FFCRA exemption scenarios into a quick chart for you, with links for further information:
Small employer exemption
Employers with fewer than 50 employees are able to claim an exemption if providing paid leave “would jeopardize the viability of the small business as a going concern.” Note that this standard is not easy to meet and may be very difficult for employers to justify. See DOL FAQs 58 & 59
Healthcare exemption
FFCRA allows a healthcare provider exemption. Please note that this exemption can now only be used for clinical employees. We highly recommend caution when electing this exemption.
*Santa Rosa, California does not allow the healthcare provider exemption from the 2 weeks of emergency paid sick leave.
Can I partially exempt and grant FFCRA for some employees but not others?
Yes. If one of the exemptions applies to you, then you are able to exempt yourself in some situations and not others. You should have objective criteria for why some employees receive a benefit others do not. Differences in their positions in the office would be an objective reason. For example, you may be able to support a reduced work schedule or temporary leave for your nurse, but need to get a full-time replacement for your physician’s assistant. What would not be an appropriate distinction would be allowing paid leave for mothers but not fathers. See DOL FAQ 38
Can I partially exempt and only grant FFCRA for certain types of leave?
Yes. If one of the exemptions applies to you, you may selectively apply the exemption. Several reasons qualify for FFCRA leave. Some employers allow the paid time off for some of the reasons (i.e., the employee has or may have COVID-19) but not for others (i.e., the extended ten weeks off for child care). See DOL FAQ 56
Even if you can claim an exemption, keep in mind that the paid funds come back to you very quickly as a tax credit.
If you have the cash flow to support paying FFCRA, it would be hugely beneficial to your employee.
Many parents are facing severe financial instability due to child care needs that are outside of their control. It’s possible they’d be able to collect unemployment, but regular unemployment rates are quite low and are only available for a limited amount of time.
Being able to start with FFCRA pay through their employer before potentially having to try for unemployment would be a huge relief for many parents.
If you are going to use an exemption and not issue FFCRA paid leave, then you should inform your employee that any time they are unable to work will be unpaid. They may be aware of FFCRA pay being available through the federal law, so you may need to explain to them that the law allows you to choose whether to provide the pay and that your business is not able to financially support doing so.
Reminder: review the most current information about the healthcare exemption.
For more on how much to pay, including when the employee is working reduced hours, see “Set Up Payroll” below.
Approving a
Leave of Absence
Considerations
At this point, you should have worked through any solutions to finding daily or periodic child care, considered remote and reduced work schedule options, and decided whether FFCRA pay will be made available.
From here, assuming you are granting an extended absence from work, you need to administer a leave of absence. This will be paid or unpaid leave, depending on your decision about FFCRA. However, the same basic steps should be followed, whether FFCRA applies or not.
Get the Employee’s Request in Writing
If the employee will be taking time off with FFCRA, you need to document this in your records.
CEDR Members have a sample FFCRA Request Form in the CEDR Member’s Area.
Free HR Vault Subscribers can find that form pre-loaded in their HR Vault’s Master Folder.
If FFCRA will not apply, document this as an unpaid leave of absence request.
CEDR Members have a sample Leave of Absence Request Form in the CEDR Member’s Area.
Document Your Approval
You should also provide your employee with a letter or email that confirms the details of their absence: the amount of time off they have been granted, any PTO or FFCRA that will apply, and expectations for check-ins with you.
CEDR Members have a sample Leave of Absence Approval Letter in the CEDR Member’s Area.
Set Up Payroll
If this is an unpaid leave, you should pay out any accrued but unused sick, vacation, or PTO time concurrently with the leave. After that, you should set them on “leave without pay” status.
If FFCRA is used, make sure that your timekeeping and payroll systems are set up to track their FFCRA time properly.
Tracking and paying reduced rates with designated monetary caps can get complicated! CEDR offers timekeeping and payroll solutions that are compliant with FFCRA requirements. If you’re doing this on your own, here are the guidelines to follow:
- Count any FFCRA time already used against the total FFCRA amount available for the year (2 weeks of sick leave + 10 weeks of family leave).
- Determine the number of hours per week the employee will be using as FFCRA.
- If the employee is working a reduced schedule, they are only able to have FFCRA applied to the hours of their regular schedule that they are unable to work. If they usually work 40 hours but have to reduce to 30 hours, then they can receive FFCRA for the 10 hours they are missing.
- If the employee is not able to work at all, again, you apply FFCRA to the hours that they are unable to work. If they usually worked a 40 hour week, then they can get 40 hours of FFCRA per week. If they only worked a 25 hour week, then they would get 25 hours of FFCRA per week.
- Designate up to 2 weeks of time off as FFCRA paid sick leave.
-
Pay for the time off at ⅔ their regular rate.
-
Cap the daily rate paid at $200, and the total amount paid for the two weeks at $2,000.
- Designate up to 10 weeks of time off as FFCRA paid family leave.
-
Pay for the time off at ⅔ their regular rate.
-
Cap the daily rate paid at $200, and the total amount paid for the ten weeks at $10,000.
If the employee has accrued regular PTO, vacation, or sick time, you should apply the FFCRA pay first unless the employee requests otherwise.
Employers cannot require that employees use up their standard time-off benefits first. However, with FFCRA only paying ⅔ rate for child care leave, they may prefer to use their regular time-off benefits first.
While Your Employee Is on Leave
Get Temporary Coverage, If Needed
You can hire a temporary employee to get the necessary staffing coverage while you have someone out due to child care needs.
When you hire them, make sure the offer letter clearly states this is expected to be a temporary position.
CEDR Members have a sample Temporary Employee Offer Letter in the CEDR Member’s Area.
Keep in mind that you legally cannot weed out candidates who have kids based on the fact that they are parents!
Note: we are only talking about bringing on a temporary employee. Even though this person may only be there a short time, you can’t make them an independent contractor.
And remember that their temporary status doesn’t change your obligations to ensure they’re compliant with your policies. Give them the employee handbook, and don’t forget to HIPAA train them.
For help with hiring, download our newly refreshed Hiring Guide free here.
Follow Up Toward the End of the Scheduled Leave
We recommend having an expected return to work date in place, and informing the employee that you plan to check in with them about 2 weeks ahead of that date.
If the employee is ready to return to work:
If the employee is ready to return, and you’re prepared to have them back, then confirm with each other when they are expected to return and what their schedule will be. Also, give them a heads up about any other changes that happened while they were gone that they should be aware of in advance.
If you don’t want to bring this employee back:
If, when the time comes, it turns out that you don’t need them back, that’s generally ok. An employee on leave from work is subject to all the normal changes that would have happened had they still been actively working.
The pandemic is unpredictable, so you may find yourself in a position where you needed to reduce your staff size or restructure the team. If that is the case, be upfront with the employee as soon as possible so they know they need to start making different plans for employment.
A big caveat here: If the employee was out under FFCRA, there is some job protection in place for them. You are supposed to treat FFCRA as job-protected leave, with a couple of exceptions.
You can opt not to bring them back if they are a highly compensated “key” employee, or if you have fewer than 25 employees and certain business and economic circumstances have changed.
Read the DOL’s full guidance on that here before making this decision.
If the employee is NOT able to return to work:
Have a detailed conversation with the employee about their child care status.
If they just need another couple weeks off to make it to the end of the semester and their child will then go back to in-person schooling, we recommend extending their time off as unpaid leave. Document this extension in writing.
If they are able to return on a limited basis (part-time and/or remote), then have that conversation with them and consider if that option works for you.
If The Employee Needs More Time
If your employee needs more time and doesn’t have a foreseeable return date in sight, you have two choices — stop holding their job, or allow them to continue staying out on leave.
Stop holding their job: Let them know that you need to officially separate from them so you can complete your ongoing staffing plans and ensure you have continuing coverage. Tell them they are eligible for rehire should they become available in the future. You simply can’t promise you will have the same — or any — position open for them at that time.
Continue their leave: You are able to have them stay out on leave. CEDR typically would not recommend granting an indefinite leave, but these are highly unusual circumstances and it is ultimately up to you.
You can let them know you are doing your best to hold a job for them and they should contact you when they are ready to return. Or, you can grant extensions and continue to check in at scheduled times. This is really the preferred way to do it, so that you remain in contact and have a better idea of their long term plans.
Either way, this is an extended, unpaid, personal leave of absence, so it is not job protected. Meaning that, if you don’t have a position for them when they are finally able to return, you can separate at that time.
If the Employee Ignores You:
If you are trying to reach out to the employee to confirm their return to work status and they are not responsive, document every one of those efforts.
CEDR Members and Free HR Vault Subscribers: Use the “Add a Note” function in your HR Vault to add confidential documentation to an employee’s file.
Don’t have an HR Vault account yet? Unlock your FREE HR Vault here!
We also recommend sending an email or letter to the employee that tells them you’ve been unsuccessful in contacting them, but that you expect them to return to work as scheduled on a designated date.
If they do not respond and/or do not show up to work, you can treat that as job abandonment and resignation from employment.
Update Your Temporary Employee
If you hired someone to provide temporary coverage, don’t leave them hanging!
Make sure they are aware of what’s happening at the end of their scheduled coverage time, as well. This may be confirming when their last day will be, asking them to stay on a bit longer, or extending an offer of ongoing regular employment.
Separating with an Employee Unable to Work Due to Child Care Needs
Your employee may arrive at their own decision to resign from their position due to their child care needs. Or, you may choose to part ways with that employee because you can’t continue to hold their job for them, or due to a change in staffing needs.
A word of caution here. FFCRA paid leave does apply to many child care situations. If it does apply, then it is very risky to let an employee go for childcare reasons, as FFCRA provides job protection and does not allow employers to retaliate (i.e. terminate) employees for needing a FFCRA covered absence. Be sure to first review our guidance around FFCRA applicability and exemptions, and current serious concerns about claiming a healthcare provider exemption.
As with any separation, we recommend having this conversation in person whenever possible. If, however, the employee isn’t currently working, it’s ok to have a telephone call instead.
When you have this conversation, be very clear about the reason why you have to separate from them. If this is due to not being able to hold their job during the school year, make sure that’s clear. The issue is that they aren’t able to work their schedule, and you aren’t able to hold their job. Don’t leave things up for speculation about whether this was a termination for-cause or there being some other reason for getting rid of them.
We recommend telling them that they are welcome to apply for a position with you again when they become available. Of course, there are no guarantees a position would be available at that time.
Finally, document this decision in a letter to the employee. You can provide this letter to the employee in person, by email, or by mail.
This should clearly indicate the reason why they are no longer working for you. Providing this letter is simply done in an effort to document the decision you already verbalized to them. Therefore, there is no reason to have the employee sign that letter.
CEDR Members have a sample Separation from Employment Letter in the CEDR Member’s Area.
After separating from an employee, the next thing on your to-do list is hiring a replacement. Use the free hiring resources below for guidance.
Updated September 17, 2020; originally published August 5, 2020.