Incredibly, COVID-19 has now impacted a third school year. Working parents were previously able to rely on the federal Families First Coronavirus Response Act (FFCRA) to take leave in the event of school closures and/or remote learning due to COVID-19-related circumstances. As of now, no such leave entitlement exists for the 2021-2022 school year.
Unfortunately, the last several weeks suggest that schools may yet again invoke closures or remote learning in order to combat the most recent COVID surge, particularly as the “Delta” variant appears to more readily affect children and those under the age of 12 remain without vaccination options. Employers must be prepared to address the ongoing challenges faced by working parents.
While some states have enacted legislation to provide leave in the event of pandemic-related issues affecting working parents, no such laws exist here in Oklahoma. However, Oklahoma employees may be entitled to a variety of paid or unpaid leave options and/or accommodations to address potential school closures, or the challenges posed when a child contracts COVID or is exposed to COVID:
- Family and Medical Leave Act (FMLA). Unpaid FMLA leave may be available to eligible employees who demonstrate that they are needed to care for a family member with a “serious health condition.” Depending on its severity, COVID-19 may constitute a “serious health condition.”
- Paid Time Off (PTO). Employer policies regarding paid time off vary. The terms of an employer’s PTO policy may enable an individual whose family member contracts COVID-19 to utilize paid leave. Employers must follow the terms of their policy. Some policies create a leave benefit wholly separate from (un)paid sick leave and which is not to be used for absences due to injury or illness.
- Teleworking. The last 18 months have forced many employers to resort to teleworking arrangements. Employers may consider this as an accommodation for employees whose children are prohibited from attending school due to illness or an exposure-related quarantine. Employers must be consistent when administering these types of requests or else risk claims of discrimination.
- Altered or reduced schedules. Employers may also consider an altered or reduced work schedule in response to an employee who is unable to maintain his or her established work schedule because a child is ill with COVID or has been excluded from school for a COVID-related reason. Again, be consistent when utilizing this option.
- Paid or unpaid leaves of absence. Employers always have the option to provide a paid or unpaid leave of absence to any employee, for any reason, even if not required by law or policy. This option must be provided to all similarly situated employees.
Note that teleworking, altered or reduced schedules or other leaves of absence would not be available as “reasonable accommodations” under the Americans with Disabilities Act (ADA). The ADA requires accommodations only for employees who themselves require them. The ADA does not provide accommodations for an employee to care for someone else who may have a disability. Employers should not reference or administer the ADA when responding to a request from an employee who is dealing with a sick or quarantined child.
Another thing to consider is that COVID may now impact unvaccinated employees more than their vaccinated counterparts. For instance, there remains guidance suggesting that vaccinated persons are not required to quarantine after known exposures, while unvaccinated persons remain subject to quarantine requirements. Employers should monitor the administration and impact of their facially neutral policies to ensure that they do not have an adverse impact on any protected classification, particularly as data has shown that vaccination rates fluctuated markedly among different protected classifications.