Options to Employees Dealing with Lack of Childcare
While New York State businesses have been re-opening in accordance with Governor Cuomo’s New York Forward Plan, employers and workers alike face many unanswered questions. Though New York State has done a remarkable job flattening the curve and significantly reducing the new number of COVID-19 cases, the pandemic continues to have a pervasive effect upon employers large and small, and particularly employees who are being asked to return to work.
For close to a four-month period, many employers closed their doors, forcing them to conduct business operations from home where possible. Those businesses not able to operate remotely were faced with the tough decision of whether to retain employees or layoff employees allowing them to file for unemployment benefits.
While unemployment insurance benefits assisted many people during the past four months, many other employees are faced with the challenges of working remotely while caring for their children due to school and day care closures. Those employees are now being called back to work in businesses that have been able to re-open in accordance with the State’s regulations. Yet, daycares, summer camps, recreation camps and summer schools remain closed.
What options are available to employees called back into their full-time job who do not have available childcare because of COVID-19?
In a typical pre-COVID-19 world, an individual would not have qualified for unemployment insurance benefits due to a lack of childcare. The Unemployment Board routinely held in their decisions that a person staying home to care for a child is not ready, willing, and able to work and therefore does not qualify for unemployment benefits.
However, a recent article from WKBW in Buffalo quotes the Commissioner of the New York State Department of Labor, Roberta Reardon, as stating that a person who has refused a job because they have to stay home to care for a child where the school is closed or childcare is unavailable due to COVID-19 will qualify for unemployment benefits.
While this is helpful, New York State’s online application form has not been corrected to allow for an applicant to provide this information. As the application presently stands, the form will ask “Did you refuse a job offer or referral?” and the applicant is to check a “yes” or “no” box. Currently, there is no place to provide a written explanation that the refusal is due to a lack of childcare. However, the attorneys of Melvin & Melvin strongly encourage applicants first and foremost to be honest when completing the application form. Meaning, if the individual has in fact refused a job offer or referral, that person should so indicate in the online form. This will likely result in a denial of benefits.
We encourage applicants to submit an additional writing whether it be via email or facsimile to the Unemployment Department including a detailed statement as to why the job offer was refused—namely, childcare was not available. In these circumstances, the Unemployment Department may thereafter approve the application for benefits. If an applicant is still denied benefits even after providing a written explanation, then that applicant should appeal the decision and request a hearing. If successful on appeal, the applicant will receive unemployment benefits retroactive to the date of their application.
New York State only provides Paid Family Leave Benefits to a person who is subject to an order of quarantine issued by the Department of Health or the State of New York, or to a person who has to care for a spouse, parent or child who is the subject of an order of quarantine. Currently, there is no paid leave available for an employee due to the unavailability of childcare under New York State law.
However, an employee may be eligible for paid leave under the Families First: Family and Medical Leave Expansion Act. This Act is only applicable to employers with less than 500 employees. It provides for up to 12 weeks of leave to care for a child whose school is closed, or daycare is otherwise unavailable due to COVID-19. The first 10 days of leave is unpaid. The remaining 10 weeks are paid to the employee at two-thirds of their regular pay.
The Families First federal law also provides Emergency Paid Sick Leave to an employee who has to stay home to care for a child whose school is closed, or daycare is otherwise unavailable due to COVID-19. For a full time employee, the employee would receive 80 hours of paid sick leave at their full rate of pay. Part-time employees are also provided with paid leave dependent on the number of hours worked each week.
This issue will only become more prevalent and serious as the fall approaches and parents are left wondering whether school will be back in full session this school year. Because of the pandemic, things are changing rapidly, and Melvin & Melvin will be closely monitoring State and Federal laws for new developments.