Better World

Paid Leave and Your Rights—What To Do If You’re Called Back To Work Without Childcare

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As state and local governments begin to phase in a reopening of businesses and public services, some parents are being asked to return to in-person work. If you’ve been called back to work but your childcare facility or school isn’t open, new leave options that were approved as part of the Families First Coronavirus Response Act (FFCRA) might allow you to take paid leave. 

Here’s what you need to know:

Am I eligible for “family and medical leave?”

Your best option—if you work for a private sector employer with 500 or fewer employees, or a public agency of any size—is to use emergency paid sick leave and emergency family and medical leave, now available under the Family and Medical Leave Act (FMLA). Based on the provisions of the FFCRA, parents are eligible if they are caring for a “son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.” Unfortunately, in many cases, healthcare providers and emergency responders are not eligible for this leave option. 

This expanded leave option is available now, through December 31, 2020. This emergency FMLA allows you to take 2 weeks of paid sick leave (or vacation leave if you have it), followed by up to 10 weeks of paid leave at 2/3 your regular rate of pay (or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in total). Local and state public sector employees are covered, but many workers employed by the federal government are not able to use the expanded 10 weeks of family leave.

Keep in mind that you need to have been at your company for at least 30 days before taking this leave. Unfortunately, if your place of work employs fewer than 50 employees, they do not have to offer paid leave if they can demonstrate it would “jeopardize the viability of the business as a going concern.” This means if they can show they’d go out of business if they had to cover paid leave, they aren’t on the hook to do it. Here’s a helpful FAQ from A Better Balance that has more on eligibility.

What if my employer refuses to approve my paid leave?

If your employer has denied your request or threatened to dismiss you for your intent to take paid sick leave or emergency family and medical leave, you can start by filing a complaint. If you are unable to return to work because you are caring for a child, it is in your best interest not to voluntarily leave your job. 

Quitting a job will typically disqualify you for unemployment insurance, including the Pandemic Unemployment Assistance (PUA) Program, created through the CARES Act. The PUA compensation entitles anyone registered for their state’s unemployment insurance to an additional $600 per week for up to 12 weeks, through July 26th. 

What if my own health is at risk?

If you are at increased risk for contracting COVID-19 because of a medical condition and feel your place of work is unsafe given your condition, you may be protected from returning to work through the Americans with Disabilities Act (ADA). 

The ADA statute requires employers to engage in an “interactive process” to try and provide reasonable accommodations to protect you. According to Ann-Marie Ahern, a labor and employment lawyer in Cleveland, Ohio, many of the conditions that put an individual at a higher risk of contracting the virus including diabetes, heart disease, lung disease, and immunodeficiency ”are almost always ‘disabilities’ under the law.” If going back to work would be unsafe for you and you want to claim ADA protections, be sure to have a medical professional provide you with documentation of that condition to submit alongside your ADA request.

How do I learn more about my rights or get legal advice?

  • Paid Leave for All has a website with additional Coronavirus emergency paid leave resources.
  • The National Employment Law Project has a list of workplace safety rights and information on what to do if you want to file a complaint against your employer with the Occupational Safety and Health Administration. 
  • MomsRising has a new blog post addressing emergency paid leave, which includes links to Spanish language resources.
  • A Better Balance has a free and confidential hotline that you can call for legal help related to paid leave. Call 1-833-NEED-ABB (1-833-633-3222).

Andrea is a mindfulness and yoga teacher, as well as an independent education consultant in Washington D.C. with expertise in child development, social-emotional learning and personalized learning. Andrea formerly lead a $500 million program for the U.S. Department of Education but still talks about her first job as a high school dropout prevention counselor.