Incredibly, COVID-19 has now affected 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 because of COVID-19-related circumstances. As of now, no such leave entitlement exists for the 2021-2022 school year. Employers must be prepared to address the ongoing challenges faced by working parents.
Other Paid or Unpaid Leave Options
Unfortunately, the last several weeks suggest schools may invoke closures or remote learning yet again to combat the most recent COVID-19 surge, particularly as the delta variant appears to affect children more readily. Plus, kids under the age of 12 remain without vaccination options.
Some states have enacted legislation to provide leave in the event of pandemic-related issues affecting working parents, but no such laws exist in Oklahoma. Employees in the state, however, 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-19 or is exposed to the virus:
Family and Medical Leave Act (FMLA). Unpaid FMLA leave may be available to eligible employees who show 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 for PTO vary. The policy’s terms may enable an individual whose family member contracts COVID-19 to use paid leave. You must follow the policy’s terms. Some policies create a leave benefit wholly separate from (un)paid sick leave and that can’t be used for absences caused by injury or illness.
Teleworking. The last 18 months have forced many employers to resort to teleworking arrangements. You may consider the set-up to be an accommodation for employees whose children are prohibited from attending school because of illness or an exposure-related quarantine. You must be consistent when dealing with these types of requests or else risk discrimination claims.
Altered or reduced schedules. You also may consider an altered or reduced work schedule in response to employees who are unable to maintain their established work schedule because a child is ill with COVID-19 or has been excluded from school for a virus-related reason. Again, be consistent when using the option.
Paid or unpaid leaves of absence. You always have the option to provide a paid or unpaid leave of absence to any employee, for any reason, even if it isn’t required by law or policy. The option must be given to all similarly situated employees.
First, note that teleworking, altered or reduced schedules, or other leaves of absence wouldn’t 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 doesn’t provide accommodations for an employee to care for someone else who may have a disability. When responding to a request from an employee who is dealing with a sick or quarantined child, you shouldn’t reference or administer the ADA.
Second, another thing to consider is that COVID-19 may now affect unvaccinated employees more than their vaccinated counterparts. For instance, guidance continues to suggest vaccinated persons aren’t required to quarantine after known exposures, while unvaccinated persons remain subject to quarantine requirements.
Accordingly, you should monitor the administration and impact of your facially neutral policies to ensure they don’t have an adverse impact on any protected classification, particularly as data have shown vaccination rates have fluctuated markedly among different protected classifications.
Courtney Bru is an attorney with McAfee & Taft in its Tulsa, Oklahoma, office. You can reach her at email@example.com.