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Volume X, Number 218

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August 03, 2020

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Extended School Closings Create Homework for Employers

You can hear the parents wailing across the country (almost like kindergartners on their first day of school), as states begin to announce their plans to keep physical schools closed or alternate between in-school and virtual classes for the upcoming year. The collective parent wail is outmatched only by that of their employers, who are faced with the Hobson’s choice of what to do with employees who will now seek more flexibility in scheduling, work expectations or remote work to account for their continued childcare and home-schooling obligations.

Outside of any FFCRA obligation or state paid sick leave/school leave/family leave obligation (some of which now cover this scenario), in most jurisdictions there is no legal obligation to accommodate parents who cannot perform their job because of childcare issues.  But parents often account for a third of the workforce. An inflexible approach may lead to a loss of key employees and negatively impact the ability to attract future talent. And there is increasing concern that the nature of an employer’s response to this issue may contribute to claims of disparate impact against women or discrimination based on family responsibilities.

As a practical matter, employers, who are facing their own economic struggles, can ill afford to pay employees for unproductive time spent educating, supervising or caring for children at home. And the job still needs to get done. This has left many employers asking, “Is there a solution to this “academic” problem?”

Certainly, not a simple one. Once you move beyond leave obligations, employers will need to leverage flexibility and creativity.

Some options employers may consider, include:

  • Create or expand permanent remote work roles: Reimagine roles to facilitate long-term remote work opportunities, achieving corresponding savings by decreasing or redesigning commercial real estate footprints.

  • Create temporary “transitional” remote work opportunities: While not legally required, employers can go “above and beyond” to create temporary but productive work opportunities that can be performed remotely. In creating such roles, employers would have the ability to define the duties, compensation level, and duration of the programs. Think outside of designated job titles and identify productive work that can be performed on a temporary basis remotely. Clear communication reserving all rights to modify or discontinue programs is critically important.

  • Enhance flexible scheduling: Allow employees to work around school hours or around their spouse’s schedule so they can share the childcare. (The DOL recently added FAQ 15 allowing employers to pay employees who work in separate smaller blocks throughout the day only for hours actually worked without violating the continuous workday rule.)

  • Expand childcare benefits: If you need workers physically present at the workplace on a full or part-time basis, consider offering onsite childcare or partnering with a service to provide childcare benefits or education.

  • Support Home Tutoring: Encourage or assist employees who need childcare to look for college-aged (or even high school-aged) students (particularly those interested in going into education) who may also be learning remotely and may have time to provide childcare or tutor during the day. Perhaps even provide an on-line forum where such information can be shared (with appropriate disclaimers, of course). Consider hosting a virtual “Tutor/Childcare Fair” providing options and resources for employees or providing a stipend to help defray the costs of tutoring/childcare.

  • Adjust FSA benefit plans: Consider allowing mid-year changes to FSA plans in accordance with recent IRS guidance.

  • Modify FTE Status: Consider allowing employees who are struggling to manage work and childcare responsibilities to switch temporarily to part-time or reduced hours, with corresponding reductions in pay.

  • Create temporary unpaid leave programs:   Develop temporary unpaid leave programs for employees who have no statutory or company sources of paid or unpaid leave available to them.

  • Explore temporary or permanent transfers: Allow employees to transfer to open positions that can better accommodate the remote work or flexible scheduling. Allow remote work where possible.

As the saying goes, “necessity is the mother of invention.” Employers can brainstorm ways to get through this time period, knowing that with the right planning and communication they can lawfully discontinue and sunset any voluntary programs. Employers adopting such initiatives would be well-served to communicate the temporal or other limitations of such programs and perhaps have employees sign acknowledgments confirming that any special “COVID-19” programs can be modified or discontinued at the employer’s sole discretion.

In addition, while many employers have been very lenient to date with the productivity of employees working remotely, now that it appears the need may continue through the end of the year and possibly for the entire school year, employers should approach this next wave of flexibility requests with more intention. Set forth the expectations for the job and talk to employees about performance issues that have arisen with any previous flexibility. Make sure they understand that while you are willing to work with them during this difficult time, and want them to succeed, ultimately, it will require effort on their part to ensure that the job gets done.

Of course, even the most flexible employer may find it difficult to allow flexibility in every role. In those circumstances where there is no protected leave available, and the employer is either not interested in providing an accommodation or it is not possible to accommodate in a fashion that will allow the job to get done, then the choice may need to be left to the employee as to whether they continue in the position (and find someone to provide childcare) or whether they need to step away from the job during this time.

As employers consider these programs and individual requests, employers must strive to ensure consistency and avoid assumptions about who in a family acts as the primary caregiver. Even if a request cannot be granted, handling each request in a thoughtful, deliberate manner will go a long way to promoting employee retention and limiting risk.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 204

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About this Author

Francis P. Alvarez, Jackson Lewis, Health Care Management Attorney, Injured Workers Lawyer
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Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues...

914-872-6866
Patricia Anderson Pryor, Class Action, Litigator
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Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies. Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation reviews

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Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney
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