Commentary & Opinion
By Jon Hyman
May. 6, 2020
Child care is the issue that has gotten the least attention in discussions about employees returning to work.
As states begin to slowly reopen and return employees to work, working parents are left wondering who will care for their children if schools, day cares and camps are closed.
And the FFCRA does not account for parents who are stretched the point of exhaustion, working their full workdays remotely, and then working another full workday managing child care-related responsibilities. Consider the following hypothetical from the New York Law Journal.
Maya is an investment banker in New York City and typically works a 10-hour day. Maya has a nanny care for her infant daughter while she is at the office. During this pandemic, Maya is forced to work at home and her nanny is unable to help. Maya now has to handle a 10-hour/day job using less-than-ideal remote access technology—her remote desktop does not operate as smoothly as her office computer; she has one screen on her home computer as opposed to three in her office; she does not have direct access to her assistant or her other staff; she does not have the full panoply of office supplies and other corporate-level printing and copying, etc. With all these hindrances, Maya must work 12 hours to accomplish the same work she previously did in 10. On top of that, she must care for her infant daughter all day, which conservatively involves approximately eight hours of direct, hands-on attention. For Maya to cover her responsibilities (minus any time for even a short break), she must work a 20-hour day. And, she must do this every day, indefinitely, until the circumstances of this pandemic change.
Or consider, for example, Ohio Gov. Mike DeWine, who on May 5 said that some K-12 schools are considering starting the 2020–21 school year on a split schedule. Half of a school’s students would attend in-person classes on Mondays and Tuesday, and the other half of Thursdays and Fridays. Students would distance learn on the days they aren’t in school in person.
What’s an employer to do?
1. Don’t discriminate. Family responsibility discrimination remains unlawful under Title VII. While federal law does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.
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