Back to School? Ongoing Childcare Issues in the COVID-19 Age

Where has summer gone? As the calendar quickly approaches “back to school” time, we remain in the midst of a pandemic crisis. States and local school districts are struggling with making hard decisions between potential continued closure of schools or bringing kids back while minimizing the risks associated with return to school. Among the top concerns for parents and caregivers is the real potential that some schools will not return to on-campus classes but rather continue to hold classes remotely. What options are available to the employee if back to school does not mean back to normal.

The Families First Coronavirus Response Act 

The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.  Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19. Under those circumstances, a full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period. These benefits are available through December 31, 2020.

It is imperative that employees discuss their options with their employers now and get a plan together in the potential event that schools will not return to normal session this fall. Similarly, Employers subject to the FFCRA must be proactive and put policies in place implementing the additional leave provisions of the FFCRA. The policy should clearly state the provisions of the FFCRA and the rights and obligations of an employee seeking leave under the Act. Hopefully, most employers have implemented such a policy given that the FFCRA became effective April 1, 2020. Nevertheless, it is a good time to review the policy and notices posted in the workplace to ensure they correctly state the employee’s rights in the event of a childcare dilemma posed by the pandemic.

An option for Employers is to allow their team members the ability to work from home if they cannot find childcare due to COVID-19 related reasons. It is likely that many businesses had already implemented such a plan early on but the employee for a business that allows telework should be encouraged to do so if childcare becomes an issue.

Also, the Employer does have the right to obtain from the employee verification of the need for the leave. An Employer may request further information from the employee to confirm eligibility for leave. If the employee refuses or is unable to provide the requested information, then the Employer is not required to issue leave. The employee must provide the employer either orally or in writing the following information:

• Employee’s name;
• The date(s) for which leave is requested ;
• The reason for leave; and
• A statement that you are unable to work because of a qualified event.

If the employee requests leave to care for their child whose school or place of care is closed, or childcare provider is unavailable, the employee must also provide:

• The name of the child;
• The name of the school, place of care, or childcare provider that has closed or become unavailable; and
• A statement that no other suitable person is available to care for the child.

Hopefully the pandemic will soon pass by and life can return to normal. In the meantime, the employer and employee need to have plans put in place and keep good communication lines open between the employer and employee to make this process as smooth as possible.