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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.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.


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