The current crisis has brought with it unprecedented expansions of federal parental and caretaker leave policies. You may be eligible for paid or unpaid leave to help your family through this time.

By Joan C. Williams
October 16, 2020
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As we hear on our Center for WorkLife Law helpline every day, the COVID-19 crisis is causing parents to leave the workforce in droves. Sometimes quitting is the right thing for your family, but no parent should be forced into the decision. It's important for parents to know their rights before taking that leap.

You may have the right to take job-protected leave if your child care is closed, your kids' school is remote, or if you are caring for a family member who has to stay home for health reasons related to the coronavirus—and your employer can't retaliate against you for taking it.

If you are pregnant, you may well have the right to telecommute or receive other work changes to stay safe. If you are breastfeeding, you might have the right to different accommodations during the pandemic. And your employer can't treat you worse than your coworkers just because you're a parent.

If any of this applies to you, read on to know your rights.

Paid Family Leave Is Here—for Now, Anyway

For the first time in our nation's history, workers are entitled to federal paid leave to care for family members. This is also the first time that federal leave has been available due to lack of child care.

The Families First Coronavirus Response Act (FFCRA) has created a new, partially paid leave benefit for working parents. Employees are now eligible for up to 12 weeks of emergency family and medical leave to care for children due to COVID-19 school and child care closures if they have been on the job for 30 days (brand-new employees are entitled to two weeks). The law requires employers to pay eligible employees two-thirds of their usual pay or two-thirds the applicable minimum wage, whichever is greater (with a $200 per day cap). For example, parents can take leave on any day that in-person instruction is not available.

While the FFCRA protections can offer many parents managing virtual instruction some relief, unfortunately millions are not covered by the law, including those working for private companies with 500-plus employees and most federal employees. All state and local government employees are covered. Companies with fewer than 50 employees that can prove providing caregiving leave would threaten the businesses' viability would also be exempt, but that is rare.

The law also allows employers to deny leave to health care providers and first responders, although they can choose to provide it. Initially, the Trump administration defined "health care provider" so broadly that it included folks like English professors at universities with a medical school. A federal court recently ruled against that definition, and the Department of Labor narrowed the exemption so now it applies only to doctors, nurse practitioners, and other employees who provide services impacting patient care.

These federal leave expansions are all grafted onto the pre-pandemic Family and Medical Leave Act (FMLA). So if, for example, you had a baby earlier this year and took FMLA leave, you will likely have fewer than 12 weeks available under the FFCRA. Likewise, if you use FFCRA leave for child care now, you may not have normal FMLA available later.

If you're sick or caring for someone in quarantine

The FFCRA also offers two weeks of fully paid emergency sick leave for those who are seeking a COVID diagnosis or who have been told to isolate/self-quarantine by a health care provider or government order and partially paid leave (two-thirds pay) to care for someone who has been ordered to isolate/self-quarantine. This only applies to those who work in the public sector or have a private employer with fewer than 500 employees. In addition to this paid time off, many employees are eligible for additional time under the FMLA, Americans with Disabilities Act, or state law.

If you're pregnant

If you're pregnant, you have a right to keep working, so long as you are still able to perform your job. It is illegal for your employer to push you out, put you on leave, or take any other negative actions because of your pregnancy, even if the employer says they have your health or best interest in mind.

You may also qualify for job modifications that allow you to stay safe. Many states and some cities have Pregnant Workers Fairness Acts that require employers to give pregnant workers a telecommuting arrangement, temporary job transfer, or other reasonable precautions necessary to protect their health during the pandemic. These accommodations must be provided so long as they are not excessively expensive or difficult for your employer to provide. Even if there's no law in your state or town, the federal Pregnancy Discrimination Act or Americans with Disabilities Act may give you a right to accommodations in many cases.

If you're breastfeeding

Nursing parents may also find they have different needs during the pandemic. You may need more time for pumping breaks—to disinfect the lactation space or to take additional COVID precautions. Some parents need different accommodations for nursing, like permission to turn off their video camera during meetings.

It's important to remember that under the federal Break Time for Nursing Mothers law, most parents are entitled to reasonable break time, as needed, and a private, non-bathroom space to express breast milk during the first year of their child's life. The Pregnancy Discrimination Act prohibits breastfeeding discrimination and requires nursing accommodations in many cases. And at least 27 states have their own laws with similar requirements.

Discrimination and Retaliation: What Does It Look Like?

Discrimination means being treated less favorably because you are a parent. This can include comments like mothers should put family first or that "this may be too much for you right now." Basically, any comment that parents are, or should be, less committed to their jobs may signal discrimination.

Discrimination needn't involve comments. It's also discrimination to treat parents differently than other workers—for example, by calling all employees back from furlough, except the mothers.

It's also illegal for employers to retaliate. If you take leave, your employer can't hold it against you, but needs to treat you the same as if you had never taken it. Your employer also can't forbid you to take leave you are entitled to, or even discourage you from taking it. And if you complain of discrimination (based on race, sex, parenthood), your employer can't hold that against you or treat you differently because of it, either.

Don't Forget Pandemic Unemployment Assistance

While we don't cover unemployment here, it's important to remember that if you're forced to quit your job from lack of child care or to protect the health of your pregnancy, you likely qualify for pandemic unemployment assistance, which is provided by the same state agency that administers unemployment insurance.

For help navigating your own benefits, you can contact the Center for WorkLife Law's free COVID-19 legal helpline at 415-703-8276 or email COVID19Helpline@worklifelaw.org. To help you request leave or work accommodations, the Center for WorkLife Law also created fillable forms you can give to your employers.

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