Every region in New York State including, finally, New York City, has begun to un-“PAUSE”, but we are still a long way away from phase four, when educational and recreational facilities can reopen. Governor Andrew Cuomo recently announced that day camps will be allowed to operate in New York beginning Monday, June 29, though a decision has yet to be made on sleepaway camps. Still, many summer camps have already decided to remain closed for the season.
As the remote school year comes to a close and with summer camp plans still in flux, many parents and caregivers will soon be struggling to find childcare solutions and wondering whether they can use paid leave to care for their children through the summer months, and whether they may continue to telework even if their workplace reopens.
Taking Leave for Lack of Childcare Due to Covid-19
Under the Families First Coronavirus Response Act (“FFCRA”), an employee can take paid sick leave and expanded family and medical leave when their child’s “place of care” is closed for a reason related to Covid-19 (“caregiver leave”). A “place of care” is a physical location in which care is provided for your child. According to guidance from the United States Department of Labor (“DOL”), a summer camp or program qualifies as a “place of care.” In addition, at least one lawsuit has been filed that attempts to characterize a grandparent as a “place of care” when that person receives an order of quarantine preventing them from providing care to their grandchild.
Caregiver leave under FFCRA can be taken intermittently, meaning day by day, rather than taking all of the leave at once, and the DOL has explicitly suggested that employees and employers work together on a flexible work arrangement so parents and caregivers can divide childcare responsibilities.
Employers and employees must have a “clear and mutual understanding” that the employee will take leave intermittently; there is no written requirement. Under the Emergency Paid Sick Leave Act (“EPSLA”), which is part of FFCRA, employees are entitled to two thirds pay when taking caregiver leave.
Lawsuits have already been filed under FFCRA against employers for failing to advise employees of their rights when schools closed and parents lacked childcare. Employers should be careful not to discriminate against employees with caregiving responsibilities, and start a dialogue with employees as soon as possible about employees’ concerns and needs regarding returning to the workplace.
Continuing to Telework After Workplaces Reopen
Some parents may have found a way to make teleworking work while the kids are home and want to continue teleworking once their office reopens. In general, caregiving responsibilities alone do not entitle employees to a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”) or the state and city human rights laws.
However, the good news is that many employers are warming up to the idea of long-term telework. According to a recent survey of more than 1,000 employers, more than half plan to be flexible with workers’ requests to work from home until the pandemic subsides, and 30% said they plan to change policies to allow telework as long as employees have proven they can be productive. In addition, employers should consider changing their telework and flexible work policies now, and make sure all employees know they are available.
Written by Kacie Candela
