By Lilly Gill, Law Student Intern
The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.
Family First Coronavirus Response Act (FFCRA)
Working parents who need time off to care for children whose schools have physically closed due to the COVID-19 pandemic have new protections under the Family First Coronavirus Recovery Act (“FFCRA”); at least until December 31st, 2020. Early in the pandemic we detailed the two key provisions of the FFCRA, passed in Spring 2020, which both provide paid leave to employees for reasons related to COVID-19.
The U.S. Department of Labor offers an online tool for determining your FFCRA eligibility.
Emergency Paid Sick Leave Act (EPSLA):
Under the EPSLA an employee may take up to two weeks (80 hours) of paid sick leave to care for their child if the child’s school or place of care is unavailable due to COVID-19 precautions. All employees, including part-time employees, are eligible for EPSLA benefits, regardless of how long they have been working for their employer. However, employers may exclude employees who are health care providers or emergency responders from taking EPSLA leave.
Emergency Family and Medical Leave Expansion Act (EFMLEA):
Under the EFMLEA, certain employers must provide up to 12 weeks of leave to employees who are unable to work or telework because they need to care for a child whose school is physically closed due to the COVID-19 pandemic. The first two weeks (10 days) of leave may be unpaid. However, employees who take up to an additional 10 weeks of expanded family and medical leave must be paid at a rate of at least two-thirds (⅔) of their regular rate of pay or applicable minimum wage, whichever is higher. Pay will not exceed $200 per day, or $10,000 in total over the entire paid leave period. An employee may choose to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. They may also elect to use the paid leave provided under the aforementioned EPSLA for the first 10 days of leave. If using emergency paid sick leave for the first two weeks, pay is capped at $12,000 rather than $10,000. To be eligible for EFMLEA leave, the employee must be employed for at least 30 calendar days before the leave begins. Moreover, employees requesting EFMLEA leave must provide notice of the need to leave to their employers when the necessity for leave is foreseeable.
The EFMLEA applies to private sector employers with fewer than 500 employees and certain public sector employers. Some state and local laws extend FFCRA requirements to employers with more than 500 employees. However, employers may exclude employees who are health care providers or emergency responders from taking EFMLEA leave. Moreover, employers with fewer than 50 employees may be exempt from providing EFMLEA leave if doing so “would jeopardize the ongoing viability of the business.” As a court in Florida noted in one of the few cases brought so far under the FFCRA, this exemption is not automatic—an officer of the employer has to make a determination that the employer meets the criteria under the law, and document that determination before it can claim that it is not covered under the law.
The FFCRA applies when an employee must care for their biological, adopted, or foster child, stepchild, legal ward, or any child for whom they have day-to-day responsibilities to care for or financially support, as well as children over the age of 18 who are unable to care for themselves due to a mental or physical disability.
Between January and September of 2020, plaintiffs filed 309 employment cases related to the COVID-19 pandemic in federal court. The 309 cases include 228 claims of retaliation, 142 claims of FMLEA violations, and 129 claims of Fair Labor Standards Act (FLSA) violations. Of the 309 COVID-19 cases, 36 have already settled. Most of the cases that have settled were filed against hospitality businesses, warehouse companies, and retirement homes. The majority of federal COVID-19 employment litigation has been brought against employers in the healthcare, manufacturing, transportation, and hospitality industries. Moreover, the majority of federal COVID-19 employment cases involve claims of disability leave and accommodation, discrimination/harassment, retaliation/whistleblower, and wage and hour claims.
COVID-19 employment litigation has also featured plaintiff-employees struggling to provide adequate childcare coverage while working during the pandemic. In one lawsuit, Dozier v. City of Jasper, the plaintiff’s 13-year-old and 2-year-old children could no longer attend school or daycare due to the pandemic yet she had exhausted her personal leave. When this working mother asked to take leave under the FFRCA, her employer denied her request and terminated her. In other cases, plaintiffs alleged that their employers failed to adequately notify employees of their rights under the FFCRA.
Sex Discrimination Based on Stereotyping
An employer cannot make employment decisions based on the perception that an employee will be distracted or unable to perform job duties due to caregiving responsibilities during the COVID-19 pandemic (or at any other time). Any adverse employment actions taken on the basis of such perceptions constitute sex discrimination prohibited by federal and state anti-discrimination law. Such adverse actions include but are not limited to termination; demotion; reducing hours or pay; reassignment to a different job, shift, or location; and stripping job responsibilities. Likewise, an employer engages in unlawful discrimination against male employees with caregiving responsibilities if it penalizes male employees for seeking alternative work arrangements while allowing female employees to do so or allowing non-caregiving employees to take time off for other reasons without penalty.
Both federal and state laws protect employees and job applicants from employer retaliation for exercising their rights under leave laws or anti-discrimination laws. An employer engages in retaliation when it takes adverse action against an employee who engaged in “protected activity,” such as reporting discrimination or harassment, or exercising their rights to take protected medical or family leave. Under statutes like the FMLA, FFCRA, Title VII, and chapter 151B, it is illegal for an employer to take adverse action against an employee who requests time off to care for children whose schools are physically closed due to the COVID-19 pandemic or against an employee who reports discrimination based on sex stereotyping during the pandemic. If an employer retaliates against an employee for engaging in protected activity, the employer may be subject to civil or criminal penalties under the FFCRA, the Fair Labor Standards Act, or the Sarbanes-Oxley Act.
To establish an adverse action for retaliation purposes, an employee need only prove that the actions of the employer would have dissuaded a reasonable employee from engaging in protected activity, which broadly may include receiving an unwarranted poor performance review, being placed on probation or put on a performance improvement plan, or more severe adverse actions, such as termination, demotion, or pay cuts. Moreover, it should be noted that an employee’s underlying complaint of discrimination need only be brought in good faith for the employee to have anti-retaliation protection, even if in the end the discrimination claim is not substantiated. So, for example, last month a federal district court in Gomes v. Steere House determined that a nurse who did not qualify for FMLA leave is still entitled to continue with her retaliation claim against her former employer. This means that an employer may still face legal consequences from a retaliation claim even when the suing employee did not succeed on the underlying claim. A case of retaliation may often be easier to prove than a discrimination allegation because a successful discrimination claim requires proving an employer’s motive; a retaliation case, on the other hand, is made by providing evidence that an employer took action against you for exercising your legal rights, including terminating you after returning from FFRCA leave.
While employees may only have access to the benefits of the FFCRA until the end of this month, existing leave laws and anti-discrimination laws provide additional protection against caregiving-related adverse actions in the workplace. Employees should familiarize themselves with these laws, and consult with an attorney if they face adverse actions that seem to be because of their caregiving responsibilities.
If you have experienced discrimination or retaliation because you are a caregiver or have not been allowed to take leave to care for a family member, call our employment attorneys at (617) 742-6020.