Step 1 (cont.): COVID-19 and Kids

We’ll talk about a variety of issues to troubleshoot in a remote employment setting, but today, let’s talk about kids. As employers continue to work hard to set up virtual offices that help their employees thrive, the topic of children is also making the news. More specifically, what do to with them? As every working parent knows, children do not always respect boundaries. How do employers handle the fact that teleworkers may not be fully engaged during their regular workday, due to diaper changes, demands for snacks, or temper tantrums?

Introducing my new favorite portmanteau: Work from Homeschool. It’s a real thing, and companies must decide how to handle a phenomenon that is unique to COVID-19.

Understand the Laws

Not all employees may be able to work. The Families First Coronavirus Response Act (FFCRA), a law passed in April in response to the pandemic, provides for up to twelve weeks of paid leave (capped at the greater of two-thirds of wages, minimum wage, or $12,000), for employees who are “unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.” This relief is subsidized by the federal government, with employers deducting qualifying leave from their federal employment tax liability.

FFCRA applies to private businesses with fewer than 500 employees, and some public employers. Small businesses with fewer than 50 employees may qualify for an exemption if the leave requirements would “jeopardize the viability of the business as a going concern.” Parental leave is available to all employees who have been working for thirty days or more for an employer.

The Department of Labor has issued multiple FAQs on the act, which is in effect through December 31, 2020. As the world grapples with the effects of COVID-19 on children and community spread, I would expect that FFCRA will be extended or be replaced by other relief if school cannot reopen in the fall. It’s important to loosely understand its offerings, and provide notice to your employees of the same.

In addition to the new FFCRA, the Equal Employment Opportunity Commission (EEOC) continues to enforce Title VII and its prohibition on sex discrimination. Recent EEOC guidance reminds us that “employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.”

Go Back to the Basics: Communicate

There will be employees who can and want to do the Work from Homeschool thing without taking leave. Before you decide on how you will react to their proposal, consider:

  • Are employees with children struggling?
  • If some are, what do they need? Is it time, space, quiet, something else?
  • Do certain employees need to be on the phone or video during the day?
  • Can you be creative so that employees may do their work in unconventional ways, or during “off” hours?
  • Are your supervisors consistent in how they react to employee’s requests regarding childcare?
  • Have supervisors received training on bias, including benevolent bias?

You want to anticipate these issues before you take any alleged adverse action against employees. Recently, a former employee of Hub International alleged that the company terminated her due to her children making noise in the background of calls. The employee claims that her supervisor reprimanded her by telling her “The kids could be heard on business calls with clients. It’s unprofessional” and to “to take care of” her “kid situation.” The employee, who sued both the company and her supervisor, further alleged that she had endured “sexist statements” from her supervisor, who was “motivated by a clear bias against mothers.” We’ll be watching to see how this case unfolds.

One final note: while treating everyone the same is generally a good thing when it comes to a claim of discrimination, it is not without risk. In late June, Florida State University communicated to all employees via email that the University would revert back to its “normal policy” that does not allow workers to care for children. The email came as COVID-19 cases were rapidly rising in Florida. Needless to say, the communication caused panic and a widely publicized backlash. In July, the University clarified that workers are not prohibited from caring for children, but may have to work with their supervisor to develop alternative remote schedules or, in cases with inflexible hours, to request leave: “We want to be clear – our policy does allow employees to work from home while caring for children.”

These are not normal times, so it’s acceptable to have lot of questions. As you’ll repeatedly hear from me, now more than ever, you should keep the lines of communication open, fostering a dialogue between employees, supervisors, and human resources, when it comes to childcare concerns and so much more.

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