Employers Must Take Care in Questioning Employees Who Are Unwilling to Return to Work Due to School or Daycare Issues

By: Robert W. Small

May 13, 2020 - 2:18 PM

It is likely that workplaces will reopen before schools and daycare facilities, leaving parents with young children without their usual childcare coverage. Employers must be careful when dealing with those employees in order to avoid violation of expanded and paid leave requirements under the Family and Medical Leave Act (“FMLA”) and the Families First Corona Response Act (“FFCRA”).

In such a situation, can employers ask the employee why he or she is unable to return, and if a lack of childcare is the reason, can the employer ask if the employee has an alternative to the usual childcare arrangement? Additionally, if the employee does not give what the employer deems to be an acceptable reason, can the employer deny the leave request under the FMLA or FFCRA? According to the federal Department of Labor (“DOL”), the answer is “no,” and doing so would violate one or both of those laws.

In its most recently issued FAQs, the DOL stated that, regarding any employee requesting leave to provide childcare because their childcare provider is not available due to COVID-19 precautions, the law requires the employee to provide only the following information to justify the leave:

• Employee’s name
• Dates of the requested leave
• Statement of the qualifying reason for the leave
• A written or oral statement that the employee is not able to work due to the qualifying reason
• The name of the child requiring care
• The name of the school, place of childcare or childcare provider no longer available
• A statement that no other person will be caring for the child during the period of the requested Paid Sick Leave of Expanded Family and Medical Leave

Employers should not assume that employees who teleworked with children at home will not qualify for leave when the workplace reopens. While teleworking, employees may not have provided effective childcare or might be taking leave to provide childcare so that the employee’s spouse can return to work. According to the DOL: “These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.”  

Employers who will be dealing with these issues need to be trained as to what they may and may not ask in these situations.