KBS Reference Desk: EPSL EFML

Q:        I have a teacher who has opted for her child to receive remote instruction rather than available in-person instruction. She is now asking for Emergency Paid Sick Leave and/or Expanded Family and Medical Leave. Is she eligible?

A:        No. If the child’s school is offering in-person instruction, and the parent merely “elects” on-line instruction, the school is not considered “closed” for purposes of Emergency Paid Sick Leave or Expanded Family and Medical Leave and consequently, the employee is not eligible.

All District employees are eligible for two weeks of paid sick time for specified reasons related to COVID-19 under the Emergency Paid Sick Leave (EPSL) statute. Generally, full-time employees are eligible for up to two weeks (80 hours) of paid sick leave at the employee’s full rate of pay, up to $511 per day, when the employee is unable to work because the employee is quarantined, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. If the employee is unable to work to care for someone else who is subject to quarantine or a child whose school or childcare is closed or unavailable for reasons related to COVID-19, the employee is eligible for up to two weeks (80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay. Part-time employees are eligible for the number of hours of leave that the employee works on average over a two-week period.

The Expanded Family and Medical Leave (EFML) expands the leave and eligibility provided under the “traditional” Family and Medical Leave Act (FMLA). District employees who have been employed for at least 30 calendar days, rather than 1250 hours in the previous year as required under traditional FMLA, may be eligible for EFML. EPSL and EFML run concurrently. So, EFML provides full-time employees up to an additional 10 weeks of paid leave at two-thirds the employee’s regular rate of pay when an employee is unable to work due to a need for leave to care for a child whose school or child care provider is closed or unavailable due to reasons related to COVID-19. Part-time employees are eligible for leave for the number of hours that the employee is normally scheduled to work over that period. It is important to keep in mind that EFML is intertwined with traditional FMLA. For instance, if an employee has already used 12 workweeks of FMLA during the District’s 12-month FMLA period, the employee is not eligible for an additional 12 weeks of EFML.

In the above scenario, because the school is open for in-person instruction, it is not considered “closed.” Under both EPSL and EFML, if virtual instruction is merely an option and the school remains open for some on-site instruction, the school is not closed and neither EPSL nor EFML leave is available. In contrast, if the physical location where the child receives instruction is entirely closed to students, the school is “closed,” even if some instruction is being provided on-line or in another “distance learning” format. Accordingly, the teacher is not eligible for EPSL or EFML for merely “electing” on-line instruction. However, keep in mind that the teacher may have state and/or local leave available.

For specific questions or additional information regarding EPSL or EFML, please consult with your local school law attorney.

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