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What Can I Do To Avoid Being Fired Because My Kids Are At Home While I Am Working?

September 29, 2020
By Haeggquist & Eck

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 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 so that they can go to work and provide for their families. So, what now? With childcare options limited and parents becoming remote learning coordinators due to the COVID-19 pandemic, what can employees do to avoid being fired because their kids are at home while they are working? It is important to know that there are options.

Paid Leave Under the Federal Families First Coronavirus Response Act (FFCRA)

The FFCRA provides up to 12 weeks of paid family leave to qualifying employees who are unable to report to work or to telework because their child’s school or place of care is closed, or their childcare provider is unavailable for reasons related to the pandemic. This includes when their child is receiving all or some schooling online. FFCRA leave may be taken continuously or intermittently, meaning all at once or on an as-needed basis. FFCRA leave is also protected, meaning employees cannot be terminated, disciplined, or otherwise discriminated against for taking the leave and are entitled to return to the same or a comparable position after the leave, the latter subject to some exceptions for employers with less than 25 employees.

The FFCRA is currently effective through Dec. 31, 2020, and applies to all private and certain public employers with fewer than 500 employees. Healthcare providers and emergency responders, however, may be excluded from coverage. To be eligible, you must have worked for your employer for at least 30 days. For more information on eligibility, entitlements, and how to apply for FFCRA leave, click here.

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

In addition to the leave available under the FFCRA, 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 reenroll a child in school or daycare, participating in school- or daycare-related activities, and to 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 “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 who has a serious health condition and to bond with a new child, among other qualifying reasons. Like the FMLA, the CFRA currently applies only to employers with over 50 employees; however, beginning Jan. 1, 2021, the CFRA will be significantly expanded to apply to employers with over five employees.

Click here for more information on the CFRA leave expansion. Like the FFCRA and the FMLA, CFRA leave is protected, meaning employees cannot be terminated, disciplined, or otherwise discriminated against for taking the leave and are entitled to return to the same or a comparable position after the 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 and eligible for use beginning on the employee’s 90th day of employment. HWHFA leave can be used to care for a sick family member. Similar to the other leave laws, employees cannot be terminated, disciplined, or otherwise discriminated against for taking HWHFA leave.

Need Legal Assistance?

If your employer refusing to provide you with leave you believe you are entitled to or has terminated, disciplined, or otherwise discriminated against you for taking leave, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law.

Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.