Archives for September 2020

They say it takes a village to raise a child. From school, daycare, and aftercare programs, to sports practices and summer camps, to childcare assistance from family members and friends, most parents rely on many people and programs outside of their home to manage the daily juggles (and struggles) of raising children. This is particularly true for working parents who need their village to go to work and provide for their families.

The COVID-19 pandemic immediately eliminated most in-person work, childcare, and in-person school across the country in 2020, and parents had to quickly adjust to working from home with their children. Parents shared many videos online regarding children bursting in on Zoom meetings or other disruptions to a parent’s work. While these videos can be amusing, they demonstrate a real problem for some parents who continue to work from home when their children might need to be home.

Though most schools reopened in person, many childcare centers had to close due to pandemic losses. Some parents lost their childcare and have not found another option yet. Further, parents who now work from home permanently will have school-aged children home over the summers and other school vacations. This can stress parents who need to remain professional while working from home and keep their jobs.

What can employees do to avoid losing their jobs because their kids are at home while working? Many states have laws to support working parents, but these laws do not necessarily apply to having children at home during remote work. Below are some options you might have to pause your job responsibilities if your child must be home.

Know that Your Employer Has the Right Fire You

Now that pandemic-related lockdowns are winding down, many employers are terminating employees if children disrupt their work while working from home. Employers are within their rights to do so in most states due to at-will employment. You do not have the legal right to work at home with your child, and at-will employment laws allow employers to fire you for any lawful reason.

Your employer cannot fire you for becoming pregnant or giving birth to a child. However, if you work remotely and your children are disrupting your job, there are no discrimination laws to protect against termination. Keep reading to learn about possible options to avoid termination if you must work at home with your children for a period.

Possible Paid Leave for COVID-19-Related Concerns

The federal COVID-19 paid leave laws expired in 2021, but some states still have active laws to provide employees with possible leave.

For example, California provides up to 80 hours of supplemental paid sick leave for employees who need to:

• Care for a child with COVID-19
• Isolate due to a positive COVID-19 test
• Care for a child due to a school or daycare closure for COVID-19 reasons

This law does not protect a parent who works at home with a child, but if your child needs to be home with you for COVID-19 reasons, you might qualify to take paid sick leave while caring for your child. Taking leave eliminates the risk that your child will do something to compromise your job while they are home. The supplemental paid leave expires on September 30, 2022, unless the state renews the measure.

Unpaid Leave Under California’s Family-School Partnership Act (FSPA)

In addition to paid sick leave, California’s FSPA provides employees with up to 40 hours of unpaid leave per year to participate in certain child-related activities. This includes having to find, enroll, or re-enroll a child in school or daycare, participate in school or daycare-related activities, or address a school- or daycare-related emergency.

The COVID-19 pandemic arguably falls within the emergency provision, which includes when an employee’s child cannot remain in school or with a childcare provider due to a “natural disaster.” The FSPA applies to all employers with more than 25 employees and prohibits employers from terminating, threatening termination, demoting, suspending, or otherwise discriminating against employees for taking such leave.

Other Potentially Applicable Leave Laws

California has other leave laws that may come into play for an employee who needs to care for their child for reasons not necessarily related to the pandemic. For example, the California Family Rights Act (CFRA)—which is the California equivalent of the federal Family and Medical Leave Act (FMLA)—provides eligible employees with up to 12 weeks of unpaid leave per year to care for a family member with a serious health condition and to bond with a new child, among other reasons.

The FMLA applies to employers with over 50 employees, but as of January 1, 2021, the CFRA applies to California employers with more than five employees, so most employees have this opportunity. We have more information on CFRA leave expansion should you want it.

The law protects employees who need to take CFRA leave, meaning employers cannot terminate, discipline, or otherwise discriminate against an employee for taking leave, and employees have the right to return to the same or a comparable position after their leave.

California’s Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) provides employees who have worked for their employer for at least 30 days with up to three days (or 24 hours) of paid sick leave per year, accrued at the rate of one hour per every 30 hours worked. Employees can start using them on their 90th day of employment. Employees can use HWHFA leave to care for a sick family member. Similar to other leave laws, employers cannot terminate, discipline, or otherwise discriminate against employees for taking HWHFA leave.

Some Terminations Are Wrongful

Just because employers can fire some employees for having children at home does not mean that every termination is lawful. Some employers might use a child as a pretextual reason to fire an employee for an unlawful reason. You cannot expect your employer to admit to wrongful termination, so you need a legal professional to investigate what happened and whether your employer violated your rights.

What makes a termination wrongful?

• Discrimination
• Retaliation
• Reporting unlawful conduct of an employer
• Refusing to engage in unlawful conduct

Some employers retaliate against remote employees who request leave under CFRA or another applicable law. Termination because you requested leave is unlawful.

If an employment attorney determines your termination was wrongful, they can take steps to hold your employer accountable. This can include filing a claim with the state or in court to seek compensation for your losses due to the termination.

Need Legal Assistance from an Employment Lawyer?

If your employer refuses to provide you with leave that you qualify for under the law, or your employer takes adverse action against you because you take qualified leave, contact an employment law firm immediately. If your child needs to be home while you work, there are options to protect your job. Contact us for legal help today.

On Sept. 17, 2020, Governor Newsom signed CA S.B. 1383 into law, ensuring job-protected family leave for Californians who work for an employer with five or more employees to bond with a new child or to care for themselves or a family member. The new law, which is set forth in the newly added Government Code §12945.2, is set to take effect on Jan. 1, 2021.

S.B. 1383 expands rights under the pre-existing California Family Rights Act (CFRA), which already provides leave protections for workers at larger employers who employ 50 or more workers. Now, with the new law, those who work for small businesses will also receive job-protected leave.

“Californians deserve to be able to take time off to care for themselves or a sick family member without fearing they’ll lose their job,” Newsom said in a statement.

Like the former CFRA, employers with five or more employees will now be required to grant up to 12 workweeks of “family care and medical” leave in any 12-month period to employees who have at least 1,250 hours of service with the employer during the previous 12-month period. The employer must guarantee the employee the same or comparable job position upon return from leave.

Family care and medical leave may be taken for any of the following reasons:

• Birth of a child of the employee or placement of a foster or adopted child with the employee;
• To care for a family member (child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) with a serious medical condition;
• Employee’s own serious health condition that makes the employee unable to perform the functions of his or her position (except for leave taken for pregnancy-related disability, childbirth, or related medical conditions, which are covered by other laws); and/or
• A qualifying exigency related to active duty or call to covered duty of an employee’s spouse, domestic partner, child, or parent, in the Armed Forces of the United States.

Employers may not interfere with or deny employees’ rights to exercise family care and medical leave. Similarly, employees are protected from retaliation by their employers for requesting or using family care and medical leave.

If you feel your employer has violated your family care and medical leave rights, you may be able to hold the company liable for damages.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.