In a swift announcement made by Mayor de Blasio in response to rising NYC COVID-19 rates, New York City is closing all public schools for in-person instruction as of November 19, 2020. Although officials hope that closures may only last through Thanksgiving, it is likely that they will last longer. This development affects about 300,000 students who are enrolled in NYC’s blended curriculum, which involves part-time in-person instruction and part-time remote schooling. The school district already has approximately 700,000 students who are enrolled in full-time remote learning.
This devastating development presents another challenge to NYC employers and parenting employees who are struggling to maintain a sense of normalcy and balance during the pandemic. Employers should anticipate an increased number of requests to work from home as well as an increase in requests for leave from their employees in the coming weeks, as a result of the school closures.
Employers should recall that the Families First Coronavirus Response Act (“FFCRA”) remains in effect through December 31, 2020 and applies to most employers with fewer than 500 employees. In general, the FFCRA provides for up to 12 weeks of leave at 2/3 an employee’s regular rate because an employee is unable to work (or telework) because of, inter alia, need to care for a child (under 18 years of age) whose school or child care provider is closed due to COVID-19.
As the situation continues to develop, employers should keep the following in mind:
- It is possible that any employee who requests FFCRA leave to care for a child now may have already taken some FFCRA leave during prior rounds of school closings. HR should ensure that appropriate systems are in place to calculate leave already taken and leave eligibility going forward. Also, if an employee is able to telework, he or she is not eligible for FFCRA leave.
- In order to take advantage of tax credits associated with granting FFCRA leave for child care, the IRS requires certain supporting documentation. Familiarize yourself with these IRS guidelines and collect the documentation you may need before or shortly after an employee takes leave, to ensure you do not jeopardize your rights to apply for the credits. Similarly, remember that a request for leave to care for a child older than 14 years old will require a statement of “special circumstances” requiring the employee to provide care.
- Even for employers who are not subject to the FFCRA, or for employees who have exhausted their FFCRA leave entitlement, employees may be entitled to leave under other laws or company policies if they need leave to care for a child out of school due to Mayor de Blasio’s announcement. For instance, the New York City Earned Sick and Safe Time Act permits the use of sick time when an employee has a “need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.” Go here for a handy chart of NY-specific sick leave law comparisons.
- Be mindful to equitably handle employee requests for leave or for telecommuting due to school closures. Readily permitting leave or telecommuting requests for employees caring for children, but denying requests for leave to care for other family members, or granting such requests for women and denying them for men, for instance, could subject your company to claims of caregiver discrimination or sex-based gender stereotyping, among other discrimination claims.
- Finally, for telecommuting or remote workers, it is prudent to ensure that your company maintains sound remote workplace policies. These should be designed to encourage and support engagement and performance, while mitigating employer risks associated with remote workers, including those involving information security, the prevention of workplace injuries, and adherence to wage-and-hour laws.
NYC school closures may just be the harbinger of increased pressures facing employees and business owners in the coming months, as the nation plunges deeper into a second wave of the COVID-19 pandemic. Maintaining smooth, safe, efficient business operations and sustaining employee morale and high performance amid this crisis will undoubtedly be challenging. Experienced employment counsel can help your company navigate complex workplace issues associated with the COVID-19 pandemic.