Return to school plans for the 2020-2021 academic year vary greatly throughout the U.S. with some school districts conducting all classes remotely for (at least) the first half of the school year, others adopting hybrid in-person and remote learning, and others resuming in-person instruction. As a result, employers across all industries have been impacted by staffing and coverage issues.
To assist their employees in adapting to this new “normal,” employers are considering offering a myriad of accommodations.
Governments at all levels have enacted new legal obligations for employers to accommodate employees with school-aged children during the pandemic. Further, certain employee requests for accommodations may implicate pre-pandemic laws.
To avoid legal liability, and ensure employees are being provided with benefits they are entitled to by law, employers should be wary of the below laws and official government guidance.
Families First Coronavirus Response Act
Among other protected reasons for leave, the federal Families First Coronavirus Response Act (FFCRA) requires most employers with less than 500 employees to provide paid job-protected leave to employees who cannot work because of school or childcare closures due to the pandemic.
Specifically, the FFCRA provides up to 80 hours of emergency paid sick leave and up to 12 weeks of emergency paid family leave to employees who cannot work for such childcare purposes. Employees using FFCRA leave for childcare purposes are entitled to two-thirds of their regular rate of pay, up to a maximum of $200 per day. Employers are entitled to tax credits for the cost of providing such leave, so long as recordkeeping requirements are met. Notably, the FFCRA is currently set to expire on Dec. 31.
Many states and localities also passed emergency paid sick leave laws (mini-FFCRA laws) to provide paid and/or job-protected leave to employees who cannot work due to school closures. Employers should be aware of how these mini-FFCRA laws differ from FFCRA obligations.
State/Local Sick Leave Laws
An employee’s need to take time off to care for their child whose school or childcare center is closed may also implicate state or local sick leave laws. Many of these laws either originally provided for leave for childcare purposes (like the New Jersey Earned Sick Leave Law) or have now been expanded to include such leave due to the pandemic.
Family Leave Laws/Benefits
Employees may also be entitled to take unpaid job-protected family leave under state or local law. During the Covid-19 pandemic, various states (like New Jersey) amended such laws to permit employees to use such leave when needing to care for kids whose schools or day cares are closed due to a public health emergency. Under these laws, employees are generally entitled to return to work in the same position they held before taking such leave.
Additionally, other states (including New York) that already provided for paid family leave benefits expanded such programs to generally include leave taken to care for a child whose school is closed due to the pandemic.
The challenge for employers is to keep updated on these various Covid-related laws and to understand how they interact with one another.
Employers should consider the potential application of federal, state, and local anti-discrimination laws. For example, the Americans with Disabilities Act and other state/local laws prohibit discrimination based on an employee’s relationship or association with an individual with a disability. Such laws may be implicated where an employee cannot work as a result of his or her child being unable to attend in-person instruction due to the child’s disability that may result in the contraction of a severe case of Covid-19.
According to guidance issued by the Equal Employment Opportunity Commission, employers that provide accommodations to employees with school-aged children due to school closures must not provide such accommodations based on sex or any other protected characteristics. For example, female employees cannot receive more favorable treatment than male employees due to gender-based caretaking assumptions.
Notably, the above legal obligations concern only an employee’s need for leave due to the closure of their child’s school or daycare. Federal, state, and local governments have also passed additional measures to protect employees during the pandemic.
What to Consider
There is no universal way to address how an employer should react to the new circumstances presented to employees with the adjustments to schooling due to Covid-19. How can an employer decide which policies or protocols should be integrated into their business practices and culture? There are some standard questions companies can ask themselves to help make fair and responsible decisions.
Employers should consider the following when making decisions on accommodating both business needs and employees’ childcare concerns:
- Identify the needs of the business;
- Understand employees’ concerns regarding the impact of school and daycare closures on their ability to work;
- Evaluate the success of remote work practices;
- Review employees’ roles and responsibilities and note the work that can be done remotely; and
- Decide if flexible schedules can work for employees and customers/clients alike.
After reviewing the above considerations, employers should identify what practices best support their business and people to develop and implement flexible policies. Before enacting such policies, and especially given the ever-changing legal landscape, employers should confirm compliance with the most current applicable federal and local regulations and official guidance.
With the support of management and Human Resources, employers should roll out the new policies and procedures consistently with a defined communication plan.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Marissa A. Mastroianni is an associate attorney in Cole Schotz P.C.’s employment, litigation, and cannabis practice groups. Her practice is dedicated to litigating employment cases on behalf of employers and providing employment counseling services to employers and executives across industries.
Kylie Cimmino is a consultant with Red Clover LLC, an innovative change management and human resources firm. Her focus is with the trades and construction industries.