July 5, 2020

Volume X, Number 187

July 03, 2020

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July 02, 2020

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When Children and Work Collide: Employer Considerations for Workers Handling Childcare Challenges

Childcare is an essential component of any return-to-work plan. Without it, employees may assert that they are unable to return to work or may seek to continue to work remotely.

Currently, childcare options are limited due to closures mandated by state and local orders and employees’ concerns about safety. Most schools will remain closed throughout the summer, and summer programs and camps may be cancelled. Moreover, some childcare centers may not reopen at all because of (1) the economic impact of the shutdown further exacerbated by the likelihood of taking fewer children and (2) the difficulty of maintaining post-reopening necessary hygiene practices and social distancing in a childcare setting.

Employees may seek to continue working remotely or to remain out of work for an extended period pursuant to certain protections under the Families First Coronavirus Response Act (FFCRA). The FFCRA applies to employers with fewer than 500 employees and provides leave (see FFCRA FAQ No. 20) for employees who need to care for a son or daughter because of a public health emergency resulting in the closure of schools and a number of other specific situations resulting in the loss of childcare. The FFCRA currently covers up to 12 weeks of leave between April 1, 2020, and December 31, 2020—which may ease the childcare problems for covered employees for a period of time. However, unless extended by Congress, that protection will expire at the end of the year. With vaccinations predicted to be available anywhere between September 2020, and well into 2021, childcare may still be an issue in December 2020. Another factor in the situation is that the availability of childcare may decrease because of economic hardships that some facilities have faced during quarantine periods due to state stay-at-home orders.

Employers not covered by the FFCRA (i.e., those with more than 500 employees) may want to consider any state or local directives that offer leave or protection to employees based on childcare issues and workplace closures/quarantine orders (including paid sick leave and family and medical leave). To the extent that requests for leave due to childcare availability disproportionately affect one gender, employers may want to ensure that their leave policies do not violate federal and state discrimination laws.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 155


About this Author

Katherine Dudley Helms, Ogletree Deakins Law Firm, Health and Employment Attorney
Office Managing Shareholder

Ms. Helms has extensive experience representing clients in employment matters as varied as the practice offers.  She has represented companies and individuals in both the private and public sectors ranging from production line supervisors to company executives.  Having represented clients in forums from mediation to the United State Supreme Court allows Ms. Helms the perspective and knowledge to work closely with her clients to offer creative solutions to age old problems.  Ms. Helms frequently guides clients to take what is learned through administrative complaints and/...

Stephen Woods, Ogletree Deakins Law Firm, Greenville, Labor and Employment Litigation Attorney

Stephen Woods represents and counsels companies on a wide range of labor and employment law issues—though a significant focus of his practice is on background checks (counseling and litigation) and RIFs (including the ADEA/OWBPA, WARN, and state mini-WARNs). He assists national, regional, and local clients on preventive analysis and advice, class and single-plaintiff employment litigation, and EEOC and state agency charges. He is the chair of both the firm's O-D Comply compliance solutions group and the Background Checks Practice Group and the shareholder-author of the O-D Comply: Background Checks subscription and the O-D Comply: E-Signatures materials.