Kids Returning to School? Employment Law, COVID-19 & Parents’ Right

The Family and Medical Leave Act allows families to take time off work, without risking their job or health insurance, to care for themselves or a family member. Since the passage of the FMLA, over 200 million Americans have utilized this important benefit.[1] With the ongoing COVID-19 pandemic, families and workers pushed lawmakers to expand the FMLA, providing more time off for more reasons than the FMLA previously allowed for. With the school year fast approaching, what job protections do Minnesota employee and parents have?

Coronavirus Employment Rights and FMLA Expansion

The Families First Coronavirus Response Act (FFCRA), which was later amended (slightly) by the Coronavirus Aid, Relief, and Economic Security Act (CARES), went into effect April 1, 2020, and expanded parents’ leave rights under the FMLA. The FFCA covers non-federal public agencies and private employers with fewer than 500 employees. Small businesses of less than 50 employees may apply for an exemption to the childcare and school provision (discussed below), if providing such a benefit would jeopardize the viability of the business.[2]

If your employer is covered by the FMLA expansion, you are eligible for two weeks of paid sick time for reasons related to COVID-19. If you have worked for your employer for 30 days or longer, you are also eligible for up to 10 additional weeks of paid leave to care for a child, under certain circumstances. Note, however, that employers may exclude health care providers or emergency responders from taking this extended leave.

To qualify for up to 10 additional weeks of paid leave, you must be unable to work or telework because you are caring for your biological, adopted or foster child, your stepchild, a legal ward, or a child for whom you are acting as parent for whose school or child care is closed, or if their child care provider is unavailable, for reasons related to COVID-19. If you have taken FMLA leave previously this year (according to your employer’s definition of a year), the amount of leave available under this law is reduced by the amount of time taken for FMLA leave.[3] Your employer may also require you to use accrued paid leave after the first two weeks of this expanded family and medical leave.

If your need for extended leave is foreseeable, the FFCRA requires employees provide notice to their employers as soon as practicable. If you fail to provide notice as requires, employers should contact you, and give you the opportunity to provide the documentation required to take leave under this law.

Your employer may require additional documentation if you plan to take leave for this reason, including the name and age of your child, the name of the school, childcare, or childcare provider, and a statement that someone else will not be caring for the child besides yourself. If your child is over the age of 14, your employer may also require an explanation of the special circumstances which require you to provide care.

You may be able to take this leave intermittently as long as several conditions are met. First, you and your employer must have an agreement allowing you to do so, including what increments of time you may take your leave in. Further, if you are still reporting to your employer’s worksite, the reason for the intermittent leave must be because of school or childcare closures. You may not take leave intermittently if you are sick or subject to a government or healthcare provider ordered quarantine or caring for someone who is.

Like standard FMLA leave, employers are prohibited from disciplining, discharging, or discriminating against you for taking such leave.[4] After you return from leave, you are generally entitled to be restored to the same or similar position. However, you are not protected from employment actions that would have affected you regardless of your leave status, such as layoffs for a legitimate business purpose.

As of now, extended leave to care for children due to school or childcare closures is only available through December 31, 2020.

Teleworking During MN’s COVID-19 Peacetime Emergency; Family Status Discrimination

Under Minnesota Governor Tim Walz’s Executive Orders 20-74 and 20-48, Minnesota employees who can work from home must continue to do so. This applies to both critical and non-critical employers, even if your employer received an exemption under Executive Order 20-48. Executive Order 20-83 has extended the Minnesota peacetime emergency until at least September 11, 2020, unless the work-from-home (WFH) provisions are modified, revoked, or extended. (Please continue to keep yourself apprised of the most current WFH status).

Under the Minnesota Human Rights Act (“MHRA”), reasonable accommodation requests should be considered for those employees who cannot telework. It is unlawful for employers to discriminate against employees on the basis of family status. For example, it is unlawful for an employer to treat employees with children less favorably than those without (e.g. allowing some employees to telework, but not those with children). Further, it is unlawful to retaliate against an employee who reports a violation of the MHRA.

If you can work from home and your employer is not allowing it, you have several options. First, you can discuss with your employer the Executive Orders requiring Minnesota employees to work from home if they can do so. Second, you can contact the Minnesota Work from Home Violations Helpline to discuss the potential violations by the employer and possible courses of action (ph: 651-539-1132; email: WFHviolations@state.mn.us). Third, contact one of the employment law attorneys at Wanta Thome PLC to discuss your employee rights.

Common Questions Parents Ask Regarding FMLA Leave

I was laid off by my employer but am or will be rehired this year. Do I qualify for the expanded medical leave?

If you were laid off on March 1, 2020 or later, you do not need to wait 30 days after your rehire date to be eligible for the additional leave, as long as you worked at least 30 of the 60 days prior to the lay-off.

I’ve already taken two weeks of paid leave for COVID-19 but due to reasons other than school or childcare closures. How much time off am I entitled to if my child’s school or childcare is closed this fall?

You are entitled to twelve weeks of leave, although the first two weeks are unpaid. You may, however, substitute any accrued paid time off or vacation time as allowed by your employer.

My employer has closed/furloughed me before I intended to take leave or during my leave. Am I still entitled to the extended leave benefits?

No. If you’ve taken paid leave already, they must pay you for the leave you’ve already taken, but you will not be entitled to ongoing leave benefits. You may, however, be eligible for unemployment benefits.

I am in a waiting period before my employer-provided health insurance is to start. Does taking paid sick leave affect the start date of my healthcare coverage?

No.

I want to keep my child home from school and/or daycare to avoid exposure to the virus. Does my employer have to grant me leave under FMLA or the expanded FMLA?

No. If your child’s school or daycare facility is open, and your child is not currently in quarantine or exhibiting symptoms of COVID-19, your employer most likely does not have to grant you leave under the expanded FMLA.

I’m working from home and my children’s school will move forward with distance learning this fall. Can I use intermittent leave under the expanded FMLA to help my child with their schoolwork?

No. Many parents are finding themselves having to take shifts in order to oversee their child’s education. However, leave is only granted under the expanded FMLA in limited circumstances. Essentially, if your child’s school is open and providing educational instruction, you will not be eligible for leave under the Act.

Contact Our Minnesota Employment Lawyers

The Minnesota employment lawyers of Wanta Thome PLC are committed to protecting the rights of all Minnesota employees. If you have questions about your coronavirus employment rights, contact us for a free initial consultation.

[1] History of the FMLA: A Story of Passion, Patience and Persistence: The Nine-Year Fight to Make the FMLA the Law of the Land., Nat’l Partnership for Women & Families, available at https://www.nationalpartnership.org/our-work/economic-justice/history-of-the-fmla.html (last visited August 20, 2020).

[2] Families First Coronavirus Response Act: Employee Paid Leave Rights, Dep’t of Labor: Wage & Hour Division, available at https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave#_ftnref1 (last visited August 20, 2020).

[3] This does not affect an employee’s right to the initial two weeks of paid leave, even if the employee has taken the full twelve weeks of FMLA leave.

[4] Note: For purposes of the EFMLEA, an employee may not sue an employer directly if that employer is not a covered employer under the FMLA.