Teleworking and Tales From a Working Mom

That is the second in a sequence of articles written from my perspective as a labor and employment lawyer and mom addressing points raised by the pandemic on a number of ranges. My hope is that this sequence will present sensible steerage on methods to take care of COVID-19 considerations primarily based on present federal and state COVID-19–associated legal guidelines.

The Downside: Lack of Childcare On account of COVID-19

The final 9 weeks of homeschooling three youngsters whereas each dad and mom telework full time jobs has resulted in chaos that result in many tear -filled days and stress complications in my family. And, as many have found, regardless of the easing of stay-at-home orders and different restrictions, life has not returned to regular. For instance, although some day camps and childcare facilities have reopened, not all have. The day camp that my youngsters have been scheduled to attend won’t reopen for the summer season resulting from COVID-19. Different dad and mom are going through comparable challenges. Listed below are some new legal guidelines and laws which have issued for the reason that begin of the pandemic which may be of curiosity to employers.

Employer Concerns When Confronted With Worker Childcare Points

When employers are confronted with staff scuffling with childcare points in the course of the pandemic, there are a number of factors to think about. First, traditionally the childcare problem has predominately affected feminine staff who, in lots of cases, carry nearly all of childcare duties. For years, many corporations have centered on variety and inclusion measures within the office. With an ongoing pandemic, employers need to guarantee they don’t take a step again within the variety and inclusion house. So what’s an organization to do?

The Households First Coronavirus Response Act and Different Go away Legal guidelines

What’s the FFCRA?

The Households First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 staff to supply their staff with emergency paid sick depart beneath the FFCRA’s Emergency Paid Sick Go away Act (EPSLA) or expanded emergency household and medical depart provisions beneath the FFCRA’s Emergency Household and Medical Go away Growth Act (EFMLEA) for specified causes associated to COVID-19. The EPSLA and EFMLEA depart provisions are relevant to staff who can’t work as a result of closures of colleges or childcare amenities and the shortage of childcare ensuing therefrom. The Division of Labor’s (DOL) Wage and Hour Division (WHD) administers and enforces the brand new regulation’s paid depart necessities. These provisions will apply by way of December 31, 2020. The FFCRA requires employers with fewer than 500 employers to supply paid depart associated to childcare closures resulting from COVID-19.

Healthcare suppliers and emergency responders are exempt

The WHD launched a set of “Questions and Solutions” (Q&As) that present steerage regarding well being care suppliers and emergency responders. The FFCRA gives that employers of well being care suppliers and emergency responders might elect to exclude these staff from protection.

Small employers (fewer than 50 staff) could also be exempt

Beneath the FFCRA, small companies, together with spiritual and nonprofit organizations, with fewer than 50 staff could also be exempt from the regulation’s paid sick depart and expanded household and medical depart necessities “when the imposition of such necessities would jeopardize the viability of the enterprise as an ongoing concern.” The WHD additionally launched steerage regarding how employers might make the most of the small enterprise exemption beneath the FFCRA.

How a lot and for a way lengthy should an worker on EPSLA or EFMLEA be paid?

The overall quantity of paid depart obtainable as a result of closure of childcare amenities is 12 weeks. The primary 2 weeks of depart are paid beneath the EPSLA provisions. Weeks three by way of 12 are then paid beneath the EFMLEA provisions. An employer should pay the worker two-thirds of the worker’s common fee of pay (i.e., complete compensation apart from discretionary bonuses) over the previous six months, topic to a statutory cap of $200 per day. Employers that present paid depart beneath the FFCRA are eligible for a tax credit score to pay for the depart.

Is telework an choice?

Employers might need to contemplate if telework over the summer season is a viable choice for his or her staff. Many employers have transitioned giant parts of their workforces to telework preparations in the course of the COVID-19 disaster. The COVID-19 pandemic has opened the eyes of many employers that with right now’s know-how, a very good telework coverage (and just a little coaching) makes telework a way more viable choice for a lot of staff. I’m fortunate. My husband and I each have flexibility with our jobs and might proceed to do business from home as wanted. Not everyone seems to be so fortunate, and never all jobs are appropriate for work-from-home preparations. If telework is an choice for workers, this may be an optimum strategy—and one which has been instructed by the U.S. Facilities for Illness Management and Prevention (CDC) because the nation begins to reopen.

Is intermittent depart or schedule flexibility a viable choice?

An alternative choice to think about is intermittent depart, job partnering, or alternate work schedules. It could be attainable {that a} totally different shift might permit an worker to return to work and nonetheless have childcare in the course of the summer season. Job partnering or a reduced-hours schedule may provide another. Lastly, intermittent depart for childcare could also be helpful on this state of affairs to permit an worker to return again to work on a part-time foundation.

The WHD’s Q&As present steerage regarding teleworking preparations (Q&As 17–20) and intermittent depart (Q&As 21 and 22) beneath the FFCRA.

Can an employer lay off or furlough an worker resulting from childcare points?

If there isn’t a different choice, an worker could also be topic to a furlough (a depart to zero hours with out pay) or a everlasting layoff. Availability to work is a cornerstone of holding a job, even in these attempting circumstances. Earlier than taking any such motion, the employer should affirm it’s not topic to the FFCRA or some other state regulation associated to childcare. As faculties closed as a result of pandemic, a number of states enacted particular depart legal guidelines associated to COVID-19, childcare, and faculty closures.

What’s the applicability of unemployment insurance coverage to eventualities involving an absence of childcare?

Previous to the COVID-19 outbreak, a person wouldn’t have certified for unemployment advantages if she or he was discharged or left work because of childcare points. The explanation was easy. If the individual had childcare points, then the individual was not obtainable to work.

Within the wake of the COVID-19 pandemic, many states loosened the {qualifications} required for the receipt of unemployment advantages. Some states now briefly permit affected people to obtain state unemployment if they can’t work due to a college or daycare closure ensuing from COVID-19. In states which have revised their {qualifications}, a person will qualify for regular state unemployment insurance coverage beneath his or her employer’s unemployment account. In states the place the shortcoming to work resulting from childcare has not been waived, the person will possible qualify for unemployment advantages beneath the Pandemic Unemployment Help Plan supplied for within the Coronavirus Assist, Reduction, and Financial Safety (CARES) Act.

Pandemic Unemployment Help (PUA) is a brand new type of federal unemployment help that covers people who don’t qualify for state unemployment advantages. If a person isn’t certified for state unemployment advantages resulting from childcare points, the individual might qualify for unemployment beneath PUA. PUA is funded by the federal authorities, however fee is processed by the state unemployment company. The profit quantity would be the similar because the profit beneath the state unemployment plan.

Summer season Childcare That Is Open and Out there

The WHD has made clear (Q&A 93) that whether or not a person is eligible to obtain unemployment and FFCRA depart is predicated on the closure of a college or daycare, not the worry of sending a baby to high school or daycare. An exception might exist if the worry is “cheap” or if the kid has a excessive danger issue in accordance with the CDC’s danger tips. Now that summer season has arrived, the problems going through dad and mom could also be totally different. As soon as the college yr has ended within the location wherein the worker lives, the difficulty not revolves across the closure of a college however fairly what an worker usually did for summer season childcare and the supply of that childcare choice.

Sadly, there isn’t a magic bullet to assist staff take care of the closure of colleges and daycare. The truth is that this can be an issue staff and employers face this summer season and into the subsequent college yr. Employers are inspired to work with staff to the extent attainable. Many good staff have been compelled to confront conditions the place their regular, dependable childcare choices are merely not obtainable.