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COVID'S CATCH-22

What to do when schools are closed and work wants you back

AP Photo/Brynn Anderson
Work must wait.
  • Lila MacLellan
By Lila MacLellan

Quartz at Work reporter

Last week, instructors at the Capstone College of Nursing, at the University of Alabama, received an alarming memo from their dean. It asked parents of young children to notify the school by early August as to whether they would return to campus in the fall, so that if necessary, “we have time to hire a new faculty member to replace you.”

The dean, Suzanne Prevost, expressed empathy for the trials of parents whose children would be attending school virtually in the upcoming academic year and who might therefore be scrambling to arrange childcare.

Later, after the memo was shared widely on social media, Prevost issued a second memo stating she did not mean to imply that staff would need to resign or that they would see their contracts terminated if childcare demands would keep them from returning to campus. She only meant that the college would need to make alternative arrangements to cover those instructors’ courses.

By then, however, her initial letter had already caused a stir, raising questions about how often employers might devise ways to fire people who can not return to an office or campus because of caregiving obligations during the pandemic.

As more companies reopen their offices and other job sites, and as more school districts announce plans for remote or partially remote education, will some parents have to choose between supervising housebound children and collecting a paycheck?

As is usually true with issues pertaining to employment law, the answer is that it depends on your individual situation, including where you live.

In the US, “there might be patchwork of laws that could protect individuals based on their jurisdiction,” Chaumtoli Huq, an associate law professor at City University of New York tells Quartz, “but most likely a lot of those are going to be inadequate to deal with a lot of the challenges folks are going to be experiencing,” she says. “I think that what Covid has surfaced for employment lawyers is actually all the gaps in protection.”

But there are still some options for parents to think about if they’re worried that school closures or a lack of childcare will affect their ability to go to work. A caveat: What follows is specific to parents in the US, and it is just general information; Huq recommends seeking legal advice pertaining to your circumstances through a local legal services office.

Seek relief in the Families First Coronavirus Response Act

In April, the US government enacted the Families First Coronavirus Response Act which offers employees facing a pandemic-related childcare crisis paid leave through two mechanisms. The first, the Emergency Family and Medical Leave Expansion Act, is an extension of the Family and Medical Leave Act (FMLA), the existing law that guarantees employees the right to up to 12 weeks of unpaid leave for caregiving needs, personal illness, or parental leave.

The pandemic-related extension allows companies and organizations to keep paying employees who are parents and are forced to take leave to care for children, and to pass the cost on to the government. Employees will be compensated at two-thirds of their original salary for up to 12 weeks.

The second relevant piece of the Families First package is the Emergency Paid Sick Leave Act. It offers similar leave for six Covid-19 related reasons, including the childcare predicament facing working parents, and applies to both full-time and part-time employees.

The Families First benefits are available until the end of 2020. However, many working people will fall through the cracks. As Huq notes, the act does not cover gig workers or independent contractors, for example, and small businesses that employ fewer than 50 people can apply for an exemption.

What’s more, many Americans aren’t even aware of the benefits, while those who are may hesitate to use them if they’re worried about the reduced income, or job security, or if they’re not sure when best to take advantage of the payments, as the New York Times reported.

“For some families, it may work,” says Huq, “but most people need their full wages to meet their expenses, so they forego this.” It’s also unclear whether parents will be eligible for leave if a child’s school is planning a hybrid schedule, asking children to come into the class only a few days a week, as some schools are now planning to do.

Look into state and local laws

State and city laws may offer a lifeline to parents caught without childcare. In New York, for instance, a law enacted in 2015 made it illegal to discriminate against an employee because of their family status—that is, whether they were already parents, pregnant, or planning to become a parent. (New York City also has a paid sick leave law, Huq adds, that may apply to parents in some situations.)

Similar nondiscrimination laws exist in some form in several other states, including Delaware, Connecticut, Minnesota, and others.  

Bargain through a union or as a collective

Most working people in the US are “at will” employees, meaning they can be let go for no reason, unless they’re shielded by some other law. But if you’re one of the 10% of Americans that belong to a labor union, you may be in luck. “It’s ideal if you’re in a unionized workplace, because what we’ve seen under Covid is that unions have been negotiating precisely these issues,” says Huq.

Even if you don’t belong to a union, you could still petition your employer as a collective, for leave or other flexibility measures, and it just might work, says Huq. And if it doesn’t, there are federal laws meant to shield you from any repercussions: When two or more employees advocate for their rights together, they are protected from termination under the National Labor Relations Act.

Appeal to your employer’s conscious and reputation

If Huq were offering counsel to someone who had only their employer’s goodwill to tap, she would suggest doing exactly that. Ask your employer for an accommodation that would allow you to continue being paid and to return to work when school reopens. Many employers have received loans under the US Paycheck Protection Program and can apply for tax breaks. Those funds come from taxpayers, so the money rightfully belongs with employees, Huq argues.

“Being a good employer is also important, depending on your product,” Huq adds. “If people find out that you are letting people go and you’re not actually a good business, there’s a reputational harm there as well. So I might offer that there’s other costs here that you’re maybe not thinking about.”

It’s not going to be possible in every situation for even the most compassionate business owner to keep people employed if they cannot show up at work. In that case, says Huq, the least they can do is not harm the person’s financial prospects by, say, contesting an unemployment claim. Employers can furthermore pay some kind of severance, even if they’re not legally obligated to, and they can make a commitment to rehire that employee when they’re ready to return. “I think just having greater communication is better, rather than an across the board, saying, ‘Sorry, we need people to work and you can’t come back.’”

And if an employer doesn’t step up to be a decent citizen, a person could look at whether that company or organization is getting any tax subsidies for their businesses or properties. If it is, consider asking a local elected official to apply pressure to that company on behalf of his or her constituents.

Is this discrimination?

The Capstone College debacle had some people on social media question whether firing parents would count as discrimination. Making that case would be a stretch, says Huq, but it’s plausible.

Title VII of the Civil Rights Act forbids discrimination based on a person’s race, color, national origin, sex, and religion. “It’s difficult to argue that lack of childcare is attributable to gender,” says Huq. However, she adds, statistics about the impact of Covid-19 lockdowns on families has shown that women have taken up more of the additional unpaid household work, including childcare and virtual learning. So if an employer’s Covid-19 returning policy applies to all genders but impacts one gender more than another, there may be a gender-discrimination case, says Huq.

This should worry everyone

Goldman Sachs economists recently warned that millions of working parents may leave the labor force if schools do not reopen, which would create major headwinds for the US economy. The Brookings Institution has also warned that working parents are central to a financial recovery.

If companies needed another reason to do the most generous thing possible for their staff, it could be a reminder that employees are also consumers, Huq says. “Your businesses are not going to thrive if most people are unable to afford anything, because we’re all interconnected.”

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