Back in March, when we were scrambling to react to COVID-19, many were faced with challenges related to childcare – schools began switching to remote learning and places of care were shutting down. Many working parents remained hopeful that these difficulties would subside if they just made it to summertime.
Now, summer is coming to an end, and we’re headed into yet another school year, but not how we expected to. With coronavirus cases still present, and schools remaining uncertain about openings and the logistics of teaching, many employees are facing the continued challenges of juggling work and childcare during this pandemic.
Large groups of children won’t be attending school in person – at least not right away. With uncertainty surrounding the upcoming school year, it is crucial for employers to understand leave management obligations, and have a mix of measures that reflect balancing the needs of their workers, business operations, and customers. Employers can support their employees with a variety of options.
1. Remote Work
COVID-19 has led to more employees to work remotely. Remote work may be a good option if the employee’s job lends itself to independent work by phone and/or computer, if the employee’s remote work environment provides a safe and effective work area, and if the employee has the mindset to stay focused and not allow distractions to jeopardize their required output.
Employers should communicate and document expectations about performance, availability, and accurately recording work time if the worker is classified as a non-exempt employee. Some areas, such as Illinois and the District of Columbia, have guidelines on reimbursement of business expenses to employees that telework.
2. Leave of Absence
FFCRA - The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide eligible employees with up to 12 weeks of partially paid leave to employees unable to work in person or remotely because their child’s place of care or school was closed due to COVID-19-related reasons.
Question 70 on the DOL’s FFCRA Q&A says that when the physical location where a child received instruction or care is now closed, the school or place of care is “closed” for purposes of the FFCRA. What about if the parent has a choice of in-person or remote and chooses to keep their child out? They would likely be ineligible in that situation, as the physical location is not “closed.”
If there is a hybrid model – where, on certain days of the week, the physical location is open, and certain days, the physical location is closed, the employee may be eligible for FFCRA leave. The FFCRA allows for intermittent leave, and the employer and employee could agree to a flexible schedule.
Of note, employers may not require their employer-provided paid time off run concurrently with the FFCRA’s paid sick time provision. The FFCRA will remain in effect until December 31, 2020.
FMLA - Parents of children with special needs are allowed to use intermittent FMLA (Family and Medical Leave Act) to attend medical appointments, school meetings, and therapies, and, on occasion, to provide what may be seen as child care. FMLA leave may be an option if parents need to oversee remote schooling due to their child’s medical condition.
Additionally, if a parent needs to care for a child who needs to quarantine or requires care because they had coronavirus (serious health condition), both FFCRA and FMLA could apply.
Other Leave – employees could also take a paid or unpaid personal leave of absence if offered by the employer.
Several states and municipalities have leave laws that employees may take advantage of, and additional states have legislation under consideration.
3. Flexible Hours/Shifts
If it is possible, an employee could work early in the morning, take care of their child, and then complete the rest of their work in the afternoon or evening. Four-day workweeks, or even three-day workweeks (12-hour shifts), could be an option to allow employees to be at home during school hours on some days. Employers could allow employees to swap day and evening shifts. An employee could come in late/leave early some days and make up the time during the workweek.
Some items to remember depending on state and local law include: a requirement for advance notice of scheduling requirements, mandated meal and rest periods, and long days could affect overtime calculations (for instance, in California more than 8 hours per day is overtime).
4. Reduction in Hours
Part-Time - An employee could go part-time for a while as an option. If there's a reduction in salary for an exempt employee that does not earn enough to retain exempt status, they would need to be re-classified as non-exempt.
Job Sharing – Two employees could work part-time to fill one position. This arrangement can help companies retain valued employees who are looking to provide care for someone at home or even just a greater work-life balance.
The above options may also decrease benefit costs for employers depending on benefit policies.
5. Paid Time Off (PTO)
Employees could use vacation or other paid time off days that they have. An employer may consider advancing some PTO and have a policy so that employees are required to repay advanced time off first from newly accrued time. When not prohibited by state law, employers may be able to deduct from a departing employee's final paycheck.
The Department of Labor (DOL) guidance encourages employers and employees to collaborate to achieve flexibility and meet mutual needs during COVID-19. Employers should plan ahead with workable solutions and back-up plans. Employers should also continue to monitor federal, state, and local developments.
It is important to remember that individuals are protected with equal employment opportunity (EEO) federal and state legislation. Familial status is a protected category in some jurisdictions. It is important to avoid engaging in discriminatory treatment and offer flexible work arrangements in an equitable manner.
Getting creative within legal guidelines helps businesses retain talent and maintain positive employee relations. Even with an employer’s best efforts, an employee separation from employment may be unescapable, either based on business needs or an employee’s resignation. Employers may want to remain in contact with a departing employee that they may want to rehire in the future.
