According to the Society for Human Resources (“SHRM”), child care shortages and concerns are complicating a return to the workplace for many parents as the coronavirus continues to spread and options remain unclear for schools, camps and day cares. There are no easy solutions on the horizon for these parents or the companies that employ them. Parents of younger children in particular are more stressed and are being torn in different directions. Single parents, predominantly women, are even more severely impacted.

Many parents received some respite from the family leave provisions of the Families First Coronavirus Response Act (“FFCRA”). Some employees, especially those unable to telework, have taken weeks of leave to care for children or supervise homeschooling, but ten to twelve weeks will be used up quickly. Others have been able to work out intermittent leave arrangements by reducing their weekly work obligations and rationing their available leave. These flexible arrangements have often worked well for employers and employees who have engaged in a level of cooperation through a period of crisis for everyone. But how long will that last? And what will be the breaking point?

As the school year has ended and the availability of camps and daycare remains in doubt, numerous questions remain as to how parents are going to get through the summer and then a possible reimagined school year in the fall. And how will businesses resume pre-COVID-19 operations with critical workers leaving their jobs, reducing their hours, or simply not being able to keep up or perform up to expectations?

Availability of FFCRA Leave
Family leave under the FFCRA allows employees who are unable to work or telework due to a need for leave to care for the employee’s son or daughter, if the son’s or daughter’s school or place of care has been closed, or the son’s or daughter’s care provider is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State, or local authority. The leave lasts up to 12 weeks and is available between the dates of April 1 and December 31, 2020. Leave may be taken on an intermittent basis if the employer and employee agree.

On June 26, 2020, the USDOL issued a Field Assistance Bulletin, FAB 2020-4, addressing the issue of FFCRA leave based on closure of summer camps and summer enrichment programs. The purpose of the FAB is to provide guidance to DOL field investigators on the interpretation of employee eligibility for leave. A parent requesting leave due to the closure of such a program must provide the name of the program and some information to the effect that the program would have been the place of care for the child had the program not been closed. Such information might be that the child had applied to or been accepted to the program, that deposits have been paid, that the child had attended the program in past years and intended to attend again or was on a waiting list to attend.

Even assuming that the child had been scheduled to attend the now closed program, the parent(s) must have remaining leave available to take. Once the 12 weeks has passed, the employer is no longer required to maintain health insurance benefits and job protection for the worker. A parent who began full time family leave at the beginning of April, is now out of time. In addition, those parents who work for employers with 500 or more employees were never eligible for this benefit.

The Impact on Business
The childcare dilemma’s impact on business, especially on the efforts of businesses to advance women and promote gender equality, is likely to be long term. Boston Consulting Group (BCG) recently completed a study (Working Parents Survey: Easing the COVID-19 Burden on Working Parents),showing some of the following findings:

• 60 percent of parents do not have any form of outside help in caring for and educating their children, and another 10 percent said they have less help now than before the pandemic.
• 60 percent of parents surveyed overall had not found alternative care for their children.
• 47 percent of parents overall think their ability to perform their work duties has dropped, and that percentage is even higher for parents with children ages 5 and younger.
• Parents are putting in more time than ever before on household duties, childcare, and educating children.

The effect on parents with significant childcare responsibilities might range from lower earnings, reduction to part time work to fewer promotions and loss of jobs due to resignation or termination. Businesses will undoubtedly experience the loss of workers on whom significant training dollars have been spent, and the cost of turnover is always significant both in terms of hard dollars and impact on company morale.

The Impact on Workers and the Need for Continued Flexibility
As we continue rolling down an uncertain path, it has become increasing clear that the long term failures of the child care system (cost, availability, quality, reliability, flexibility) have come home to roost. FFCRA provided a short term solution for some families, and due to federal subsidies the cost of that relief was not born by business. The reality too, is that many workers did not avail themselves of that benefit, choosing instead to burn the candle at both ends, caring for children during the day and working in the early hours of the morning or late at night out of fear that seeking available leave might be career suicide. The reality now is that both employees and employers will need to communicate and work together around making sure their mutual needs are met, while making sure the next generation is not left behind.