The reopening of schools during the COVID-19 pandemic continues to present challenges for working parents and the businesses that employ them.  The mix of virtual and live classroom curricula are as varied and complex as the daily approaches that are announced, modified, and adjusted (and adjusted again).  That same variety in educational instruction is reflected in the regulatory schemes governing school and caregiving-related employee leaves, which are as diverse and complex as the school reopening plans themselves.  Against this backdrop are the legitimate and often emergent needs of working parents who must remain productive at their jobs while supervising their children’s schooling and navigating equally complex child care arrangements. 

Not surprisingly then, a one-size-fits-all approach for employers to appropriately manage working parents is likely difficult, if not impossible, to craft.  Mistakes in crafting leave and accommodation policies, responding to requests, and setting the expectations of both those with and without childcare responsibilities can therefore be easy to make.  Below we highlight some of the risks employers may face while offering some guidance regarding best practices to address these risks.

Employers Must Meet This Issue Head On

The issues facing employers is clear: a business (or the mission of a non-profit) is to continue operations as productively as possible in light of the reality that the workforce simply cannot produce results in the same pre-pandemic manner.  This effort is even more difficult in light of (i) a lack of a uniform approach to school re-openings – in person, remote, or a hybrid version, each of which may shift over time; (ii) a workforce with different and often shifting childcare needs; and (iii) jurisdictions with different and rapidly changing leave requirements. 

As the school year unfolds, employers must manage a workforce where home pressures are greater than ever.  According to a BCG survey, 60% of employees surveyed have no outside help to care for and educate their children, and working parents have an additional 27 hours each week of household chores to perform.  This impact is even more stark for women, who are reported in this survey to spend 15 hours more each week on domestic activities than men.  The survey’s result is unsurprising: close to half of those surveyed stated that their work performance has suffered.  These issues will become even more acute as the school year begins. 

Employees expect their employers to engage in an ongoing, honest, and transparent dialogue about the challenges impacting working parents.  And this goes beyond employment-related legal compliance.  Employees expect employers to develop remote working policies and to provide flexible work hours where possible.  Employees also expect employers to accommodate their specific circumstances – what may work for one employee living in a suburban home with one child attending school in person may not work for an employee working in the same role but living in an urban apartment with several children learning remotely – each at different levels and often occupying the same cramped square footage while being virtually schooled. 

Employers should craft approaches that account for these challenges.  One way to approach this challenge is to conduct an employee survey in which the employer asks its workforce directly what employees need for the school year and why they need it, while soliciting potential solutions.  Once the survey results are compiled (which may be done anonymously to avoid any retaliation concerns), employers are then in a better position to begin considering solutions.  In addition, employers should explore other potential resources for parents such as childcare subsidies, tutoring cohorts, alternative classroom options, or the use of an Employee Assistance Program (“EAP”).  These resources can help working parents secure in-home support or assistance to allow them to come into work or work remotely uninterrupted while ensuring their children are receiving the education they need during this critical yet uncertain time in their lives.

Manager Training Remains Necessary and Relevant

The new school year will only add further disruption to a year already marked by social, economic and health concerns as well as unquestionable interruptions in normal business operations and routines.  Yet employers must continue to be mindful of the potential for discrimination claims, including gender, familial, caregiver and pay inequity claims.  One particular area of concern is managing the burden on working parents, many of whom have been faced with the dual challenge of working full-time while serving as the primary caregiver (and tutor/teacher) of children at home.  This burden may be even more severe on working mothers who, as surveys note, may bear a disproportionate responsibility to manage household matters.  Employers must ensure that their managers are adept at setting and managing the performance of employees facing these challenges, which will differ person to person.  They must also make sure that managers also know not to force employees without childcare responsibilities to carry the workload for their peers who have children as resentment relating to such burdens can negatively impact morale. 

Employers should also be mindful of associational discrimination; for example, employees who must adjust their work and home life to care for a family member with learning disabilities or disorders.  These individuals may encounter significant stress in not only having to meet their work obligations, but to manage a virtual schooling approach as well as different therapeutic accommodations that may or may not continue to be available to those working parents.  These individuals – while not disabled themselves – may be protected against discrimination simply because of their relationship to individuals the law considers disabled.

“Leave” Compliance Challenges

The Families First Coronavirus Response Act (“FFCRA”) requires employers with 500 or fewer employees to provide partially paid job-protected FMLA leave (up to 12 weeks) for certain childcare-COVID-19-related absences, including the need for leave to care for a son or daughter if their (primary or secondary) school or place of care (including day care facilities, preschools, before and after school care programs, etc.) has been closed or where their childcare provider is unavailable. 

The U.S. Department of Labor (“DOL”) has to date issued some guidance defining the contours of school-related leave eligibility.  For example, according to the DOL, if a school has moved online and the physical location is closed, the school will still be considered “closed” for purposes of FFCRA leave.  If the child participates in a hybrid educational model, the school is “closed” only on remote learning days.  However, the DOL’s guidance places emphasis on physical location, suggesting that if a school is physically open, and a parent elects remote learning for their child, the employee is not FFCRA eligible. 

The DOL guidance also notes that an employee who has been working remotely “productively since Mid-March without any issues” may still be eligible for leave to care for their children if their school is closed.  The guidance permits employers to inquire about the “changed circumstances,” but warns the employer to tread carefully, particularly because of the possibility of a parent who can no longer work and parent effectively while school is closed, or because they can no longer shift the caregiving responsibilities onto their spouse.  Finally, the guidance encourages employers and employees to collaborate and find a workable arrangement, including one that allows for intermittent leave. 

Employers should be mindful of other state and local laws that may impact working parents, including laws that permit school-related leave (e.g. Massachusetts).  Certain states and counties, including those in California (e.g., Los Angeles, San Diego, San Francisco, among many others), Chicago, Illinois, Colorado, and Arizona have also expanded sick leave laws to require or allow paid or unpaid leave when there is a school closure relating to a public health emergency, such as COVID-19.  Other jurisdictions have implemented orders that are currently keeping certain school districts closed (e.g. California), or that may do so as conditions change.  One thing is certain in this pandemic: conditions will continue to change.

But these laws, orders and regulatory guidance only provide a basic legal framework. For example, FFCRA leave is set to expire by the end of the year (or earlier for those who are nearing the end of their 12 week entitlement).  Employers must consider whether they will be prepared to retain existing leave arrangements, modify them, or implement new leaves once an employee’s leave entitlement ends.  Further, school districts may reverse course and close schools suddenly in response to the pandemic’s course.  In these cases, employers must be prepared to accommodate new leave requests by parents who are unable to work because their children are now suddenly at home and require supervision, both as to their care and their schooling. 

Guidance Moving Forward

Neither the pandemic, nor the regulatory responses of federal, state and local governments to live student instruction, will remain static.  Working parents likewise will need flexibility in response to the persistent changes in their personal and professional lives.  Employers should keep a few basic concepts in mind as they move forward:

• The training of managers and guidance for those managers in handling accommodations for working parents and evaluating their performance are both key.

• The designation of individuals at the business to keep pace with regulatory developments as those developments apply to working parents (leave laws, accommodations, and the like) is also critical, as is the communication of the employer’s response to its workforce.

• Soliciting pertinent and appropriate survey information from the workforce achieves the goal of being responsive to the stated needs of the workforce while at the same time providing creativity and focus in crafting solutions for working parents.