Can I Be Fired For Requesting an Accommodation To Take Care of Children Who Are Now At Home?

Under the newly enacted Families First Coronavirus Response Act (ā€œFFCRAā€), some employees are allowed to take up to 12 weeks of continuous or intermittent leave to care for their child because their childā€™s school has shut down and such employees cannot be fired for taking such leave.

The FFCRA requires private employers with fewer than 500 employees to provide employees who have been employed for more than 30 days with up to 12 weeks of Family Medical Leave Act (ā€œFMLAā€) leave if the employee cannot come to work, or telework, to care for a minor child whose school or child care is closed or unavailable due to COVID-19. Section 5104 of the FFCRA prohibits employers from discharging, disciplining, or discriminating against employees who take this type of leave under the FFCRA.

California law also requires employers who employ more than 25 employees to provide up to 40 hours of leave to parents, guardians, stepparents, foster parents and grandparents, who give advance notice to their employer, to care for their children during a ā€œschool emergency.ā€ A ā€œschool emergencyā€ includes when a child cannot return to school due to a ā€œnational disasterā€¦.ā€ One could reasonably argue the pandemic qualifies as a ā€œnational disaster,ā€ requiring an additional 40 hours of leave on top of the leave provided under the FFCRA. Importantly, California employers are prohibited for discharging or discriminating against their employees for taking this type of leave.

If Your Employer Has More Than 500 Employees

For employees working for employers with more than 500 employees, an employer is not required to provide a reasonable accommodation for an employee simply because an employeeā€™s childā€™s school is closed under the FFCRA. While Federal and California law require employers to provide reasonable accommodations for pregnant or disabled employees, an employer is not required to provide a reasonable accommodation for employees to take care of their children just because schools or daycares have closed. Accordingly, there are no legal grounds to request this type of ā€œreasonable accommodationā€ and therefore the law does not protect employees from being fired for requesting this accommodation.

If, however, an employeeā€™s child suffers from a serious medical condition, where the parent must stay home to care for the childā€™s condition, the employee may be able to request an accommodation under the FMLA or under Californiaā€™s Fair Employment and Housing Act (ā€œFEHAā€) based on the employeeā€™s association with her disabled child.

Do You Need Legal Assistance?

If you have any questions about your specific rights to leave, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

Get in touch with us today by filling out ourĀ online contact formĀ or callingĀ (619) 342-8000Ā for help.

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