April 12, 2021

Volume XI, Number 102

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April 12, 2021

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The 2020-2021 Virtual School Year: 20 Tips for Employers of Parents During the Pandemic

How can employers assist working parents during the fall school year? This is one of the top questions on the minds of management and employees as the fall school year begins. Based on data from the U.S. Department of Labor, it is estimated that 41 percent of workers between the ages of 20 and 54 have a child at home. It is also estimated that single parents make up approximately 30 percent of the workforce. Many articles, including my own, have addressed the legal ramifications of COVID-19 and the effect of the lack of school and daycare availability on working parents. This article is a little different in that it compiles a list of practical suggestions and ideas for employers to consider as they ponder how to help working parents. The scenarios and considerations will not be applicable to all workforces or all employers, but they offer ideas for thinking outside the box to provide support to this critical part of the workforce during the 2020-2021 school year.

It should also be noted that, in many instances, an accommodation cannot be provided to working parents. Some jobs simply do not allow for flexibility, and many employers are struggling to simply survive the pandemic.

1. Providing Flexibility

Providing flexibility to a workforce is easier said than done. Employers are trained to create policies and to apply those policies uniformly to everyone in order to be consistent and limit legal risk. However, flexibility about childcare during the pandemic may require employers to take into account employees’ individualized circumstances.  At the end of the day, businesses may find it helpful to remain flexible to be able to operate and survive the disruptions of the COVID-19 pandemic.

COVID-19 and the school and daycare issue presents a problem unlike any other. Large swaths of the workforce do not have available childcare resources and/or the option to attend in-person schools through no fault of their own. Even in the same facility, the support that the parent workforce needs can be different.

In the Upcountry of South Carolina, where I live, the four counties that provide the majority of the workforce each have different school plans for the 2020-2021 school year. For example, my children’s school district has adopted a “hybrid” plan, under which students will attend school in person zero days per week, one day per week, two days per week, or four days per week. Families are color-coded by their last names. Parents will have one week’s notice regarding what school will look like for the next week. This scenario makes it nearly impossible to schedule anything more than one week in advance. Other schools in my area are moving to 100 percent virtual school, while others are going to try to implement in-person instruction five days per week with the option to quarantine classrooms if an exposure occurs.

There are too many options to count with regard to how school districts are attempting to deal with COVID-19 around the country. In short, employers may want to provide flexibility (and practice patience) to retain the working parent segment of the workforce and to keep the workforce efficient and productive.

2. Individualized assessments

If it is possible, team leaders may want to consider one-on-one meetings with employees to determine best times for team meetings and other scheduling issues in an attempt to work around virtual learning demands as well as other caretaker responsibilities.

3. Remote work

Remote work is a familiar concept by now. In short, with regard to remote work, the old saying “if it isn’t broken, don’t fix it” may apply. Remote work allows parents to be at home with their children when school or daycare is not available while continuing to work. Remote work also reduces other pandemic-related liability that may occur once the workforce is returned to an office environment. Employers whose remote work arrangements are doing well, and whose employees are able to stay productive working from home, may want to consider expanding and/or retaining their remote work programs and allowing them to continue until the end of the school year.

4. Flexible work hours

For some employers, flexibility regarding work hours generally may be a relatively easy option to implement. If an employee is working remotely, it may not matter to the employer if he or she is working at 2:00 p.m. or 2:00 a.m., depending on the job. If this type of flexibility is allowed for hourly workers, employers may want to confirm that they have a method to track hours to ensure unapproved overtime is not being incurred and that all hours worked are paid.

5. Reduced hours for reduced pay

The suggestions above are in many ways the easy answers. The working parent dilemma becomes much more complicated when the job is one that cannot be done remotely. Employers and employees also have to face the practical reality that even if the job can be done remotely, it does not mean that an employee can work from home and teach kids at the same time. The age of the employee’s children may have a direct impact on this issue. There is a huge difference in supervising a young child versus helping a teenager with schoolwork.

To address this issue, some employers have decided to offer part-time work to employees. Under this scenario, employee workload is reduced, and pay is reduced accordingly. The benefit of this option is that it allows an employer to retain good employees through the pandemic with the goal of returning employees to full-time status in the future. This option is one where employers allow employees to self-select. The main risk factors associated with this option relate to determining whether the option will be available for all employees (or only those with children), ensuring health benefits are still available, and ensuring compliance with wage and hour laws. In regard to health benefits, this is a plan issue. Many employer-sponsored health benefit plans require a minimum number of hours of work per week for eligibility.

6. Shared work

Shared work arrangements offer another option for working parents. Like the reduced hours for the reduced pay option, this strategy allows parents to work fewer hours. The idea is to match two employees to share a job. For example, in my personal scenario, my family has been color-coded blue by my school district. This means my children will attend school in person on Mondays and/or Monday and Wednesdays. I could match with a “green” family whose children attend school on Tuesdays and/or Thursdays. Essentially, under a job share strategy, I would work on the days my children are in school and then switch with my job-share partner.

7. Changes in shifts

Flexibility in the shifts to which employees are assigned may also be beneficial. This may allow employees to work when spousal or other family help is available to care for the children. Flexibility in scheduling may be the minor benefit employees need to make their personal childcare and schooling options work.

8. Compressed workweeks

Allowing an employee to work a compressed workweek may also be beneficial. Under a compressed workweek plan, an employee works more hours in fewer days. Again, this option is about flexibility of work hours so the employee is able to care for his or her minor children.

9. Paid leave (partial or full)

Employers with the financial ability to provide paid leave may find that providing partial or full paid leave is an option that allows employees to retain financial stability while remaining at home with their children. However, whenever any paid benefit is offered to one group of employees over another group, discontent within the workforce may arise.

10. Unpaid leave

Many employers are offering extended unpaid leaves of absence for employees to care for their children. The idea is that this option might help to retain good workers for the future who would otherwise want to leave the workforce. Under this scenario, employees may be eligible for unemployment assistance in some states. In many states, however, unemployment assistance will not be available under an unpaid leave scenario because the employee is making the choice to remain at home and out of the workplace. In addition, employers may want to consider the impact on benefits packages offered under this option.

11. Advances on vacation time or sick leave (or the ability to have a negative leave bank)

A hybrid of the leave options listed above allows an advance on vacation time or sick leave. In this scenario, employers may want to consider policy revisions to clarify how many negative or advance leave days will be allowed and what will occur if an employee is discharged or quits with a negative leave balance.

12. Bonus or supplemental compensation for childcare and/or tutoring

Again, for employers with the financial wherewithal, providing supplemental compensation for childcare, school tutoring, or “learning pods” may be an option. In areas of the country where schooling is virtual, “learning pods” are popping up as a new cottage industry. In a learning pod arrangement, parents find another group of parents to form a “micro-school” for their children, hire an adult to proctor and/or teach the children, and fund the pod privately. This is a very nice option for parents with children in virtual school, but the practical reality is that many working parents simply cannot afford this option without assistance.

13. Bringing kids to work

To say that this is an option that presents unique challenges and will work for only a select few employers and employees is an understatement. If, however, the workforce is in an office, allowing a worker to bring a child into the office may be an option. This presents issues of liability for “visitors” in the workplace and could raise discipline issues. Few workplaces can function with kids running around. Employers may want to think through the viability of this option in detail based on the configuration of their workplaces.

14. The one-room schoolhouse

To avoid the individual issues that come with allowing children to go to work with their parents, a few employers have decided to create what is essentially one-room schoolhouses for school-age kids on company property. Proctors are provided and the kids are allowed to stay in designated areas during the workday. This plan requires employers to address potential policies on children who are ill, how to screen proctors, when to allow “visitors” on the property, how to manage kids’ behavioral issues, and how best to allow children to work out their energy during the day. The best versions of these plans are accomplished when employers partner with existing, certified daycare or afterschool providers that already have the resources to deal with many of the issues raised above. In scenarios in which children are allowed on property, employers may want to consider a COVID-19 waiver. The enforceability of such a waiver, however, will vary greatly based on the state and how the waiver is drafted.

15. Partnering with daycare and afterschool programs

Employers may also want to partner with a local daycare or afterschool program and help supplement the cost of such a program and/or guarantee “spots” for the children of their employees. This allows employees to have a viable childcare option that is not on the employer’s premises for the 2020-2021 school year or until schools and daycares return to a more normal schedule.

16. Emergency childcare

While many employers do not have the ability to help with childcare on a grand scale, emergency childcare assistance may be an option. Emergency childcare could be offered, for example, if a child’s school closes for a quarantine (assuming the child in question was not exposed). There are many nationwide emergency childcare programs currently in existence.

17. Providing homeschool resources and/or community resources

Whether through a resource group or generally to all employees, many communities have resources available to assist working parents. In fact, many states are using their Coronavirus Aid, Relief, and Economic Security (CARES) Act funds to assist with childcare. With so much news and information coming at employees 24/7, providing resources from the local community and information on options for childcare and schooling may be very helpful to the workforce.

Similarly, there is a wealth of information for homeschool options and homeschool best practices online. Communications to working parents that identify these resources can show employees that their employer cares and that they are not in this situation alone.

18. Connections

Employers may want to consider allowing employees to use company message boards or other resources to connect with coworkers who may be able to assist with childcare by sharing babysitters, forming remote school “pods,” or even connecting employees who have older kids available for babysitting with employees with younger kids in need of care. Message boards can also help working parents feel a greater sense of connection and that they are not alone in the struggles related to working and schooling during the pandemic.

19. Employee assistance program (EAP) resources

Consider reminding employees of available EAP resources. Many employers already have EAPs in place. No one can deny that the pandemic has placed an enormous amount of stress on workforces. There are few working parents who have not agonized over how to handle school in the fall. Each decision seemingly has social, health, and financial implications. There are no right-or-wrong choices, but for some parents the level of anxiety over the decisions can be overwhelming. A reminder to employees of the EAP resources already available to the workforce may prove helpful.

20. The Families First Coronavirus Response Act and state paid leave laws

Finally, no article on the 2020-2021 school year would be complete without a reminder of the obligations on employers under the Families First Coronavirus Response Act (FFCRA). The FFCRA requires most employers with fewer than 500 employees and governmental employers to provide 12 weeks of leave to eligible employees in the event of school/daycare closures. Many employees may have exhausted the available 12 weeks of FFCRA leave to care for their children during the school/ daycare closures that occurred in the spring. However, if employees have any remaining leave under the FFCRA, they may use it if their children’s schools remain closed (or partially closed) to in-person learning in the fall. Intermittent leave is also allowed under the FFCRA.

Employers may also want to keep in mind state and municipal leave laws. While employers with 500 or more employees are not governed by a federal law that would require them to provide leave to employees to care for children out of school, some states and municipalities have passed paid sick leave laws that are triggered by a COVID-19–related event or absence and do not have a maximum employee threshold. For example, several cities in California, as well as ColoradoNew Jersey, Oregon (currently expiring on September 13, 2020), and the District of Columbia have extended some or all of the benefits of the FFCRA to employers with 500 or more employees. Other states and municipalities have more limited leave laws that apply to school closures and/or public health emergencies. As with the FFCRA, if employees have not already exhausted these leave benefits, they may be entitled to job-protected leave to care for children whose schools have closed.

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© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 231
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About this Author

Ashley Prickett Cuttino Employment Attorney Ogletree Deakins
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Ashley concentrates her practice in management-side employment litigation, including defending claims against wage and hour, discrimination, wrongful discharge, and breach of contract.  She also has a broader general litigation practice that has allowed her to defend clients in complex toxic tort actions, class actions, asbestos personal injury defense, construction defect cases, and FELA claims for railroad clients.  Ashley’s specialty is complex litigation, class actions and multi-plaintiff litigation. She also advises clients in the area of traditional labor law and has defended both...

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