Employee Leave for Childcare This Fall As School Closures Ramp Up

10 August 2020 Blog
Authors: Jeffrey S. Kopp Daniel A. Kaplan Carrie Hoffman Dabney D. Ware Mark J. Neuberger
Published To: Labor & Employment Law Perspectives Coronavirus Resource Center:Back to Business Dashboard Insights

As COVID-19 continues to prompt many school districts and daycare centers to remain closed for on-site instruction and care this Fall, this creates a serious dilemma for working parents.  Employers are struggling to meet staffing needs and ensure that work is being performed, but also must recognize that employees can only perform effectively when they have a plan for educating and safeguarding their children.  We are receiving many questions about leave requirements and options employers have with respect to their employees in these cases.  The answers depend on the size of the business, the state where work is being performed, whether the employee has already exhausted certain leave entitlements, and the where-with-all of the employer.  Here are some general considerations:

State Orders Mandating/Preferring Telework  

As an initial consideration, certain states and municipalities have existing executive orders that mandate telework if possible. Thus, in some locations, it may be required for the employer to permit the employee to work remotely.  This would allow the employee to remain home rather than work physically on-site.  However, even with teleworking, an employee might be unable to effectively work while also juggling to teach and supervise children at home.  However, if coupled with other options, such as restructuring positions (perhaps full-time to part-time job sharing, or flexible work schedules), it may be possible to help an employee be able to continue to work while also managing the child-supervision issue.  

Leave for Childcare

Depending on the employer’s size, the employee may be entitled to paid leave when it is not possible to telework. Earlier this year, Congress passed the Families First Coronavirus Response Act (FFCRA), which applies to employers with fewer than 500 employees.  The FFCRA generally provides up to 12 weeks of leave, paid at 2/3rds of the employee’s regular base salary up to a maximum of $200 per day for 12 weeks ($12,000 total).  Thus, employees working for covered-employers may be able to use leave under the FFCRA.  This assumes that the employee has not already exhausted 12 weeks of leave previously under the Family and Medical Leave Act (FMLA) or FFCRA during the preceding 12-month period.  Thus, if an employer is covered by the FFCRA, its employees who need time off to care for a child due to school or daycare closure must be afforded up to the statutory amount of leave provided.  Recently, there have been questions about whether employees can take this leave on an intermittent basis, say for example, when a child’s school meets in person a few days per week and the parent does not need to supervise the child.  The Department of Labor’s regulations state that leave taken under the FFCRA for childcare may not be taken intermittently.  However, at least one federal court in New York has recently held that the Department of Labor’s regulations are too restrictive and that the leave may be taken intermittently. This decision could be persuasive for other courts that consider this issue in the future.  Employers may want to be flexible, if not unduly burdensome, recognizing that courts may find that intermittent leave is permissible.  

After an employee exhausts paid time off under the FFCRA, the employee may be able to take a personal leave of absence, and substitute accrued paid benefits such as vacation or PTO, to be able to take off additional time.   

For employers that have more than 500 employees, the FFCRA does not apply.  Employees are not eligible for expanded FMLA to care for a child who is home because of school closures or lack of childcare.  However, there may be situations where a child has a medical condition (e.g., asthma) and the treatment provider recommends the child not be in school.  In that case, the parent might qualify for traditional FMLA leave if the parent is needed to care for the child with the serious health condition.  If “asthma” or other serious health condition necessitates that the child be home for virtual learning (as opposed to at school), and the parent is necessary to provide care to the child at home, then time off could be FMLA-covered on an unpaid basis with substitution of available paid time at either the employer’s or employee’s election.  Some states (e.g, California, Connecticut, Hawaii, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington State and the District of Columbia) also have state laws that provide for paid family leave that might apply in this situation.  

In addition, nothing prevents employers of any size from granting additional time off, such as a personal furlough or leave of absence.  These leaves could be paid or unpaid, depending on whether the employee has accrued paid benefits that can be used for the leave.  During a furlough, the employee might still be able to participate in the employer’s health insurance plans (depending eligibility requirements of the plan) and/or also file a claim for unemployment benefits.  Each state differs regarding eligibility for benefits, so you should check with your state unemployment agency to see if a furloughed employee can obtain unemployment benefits. 

Other Options  

Other options for managing this problem include job restructuring or other reasonable accommodations.  In some cases, certain jobs can be done at different times or in a different manner than the job has been performed previously.  For instance, scheduling could be shifted to provide for a later start/finish time if an employee needs to provide childcare for only part of a day.

Additionally, some employers have gone to more extremes in providing less conventional support.  For example, some employers are “creating” a schooling environment in their workplace for employees to bring their children to work, and to allow for remote learning.  Others have taken to securing nanny or tutor resources that can be accessed through a workplace EAP or other service so that employees can secure the in-home support or assistance they need to allow for them to come to the workplace (or to work, uninterrupted, while at home).

There may be no “one size fits all” when it comes to analyzing these issues, but employers should be careful to ensure that treatment of each case is non–discriminatory and there are legitimate reasons supporting decisions concerning job-restructuring and leave.  Employees must feel that they are being treated fairly, otherwise this may lead to the filing of discrimination charges and lawsuits.  The best practice is to enlist the help of legal counsel and work through various options to implement the least risky approach while effectively managing the business.  

For more information or questions, please contact your relationship partner or one of the authors listed below who are experienced and tracking updates in these areas. Foley’s here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to provide timely perspective on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.

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